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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Wednesday, April 14, 2004Patent Philosophy.In his Blog Karl-Friedrich Lenz, Law Professor at the Aoyama Gakuin University in Tokyo, has provided some commentary on various postings on my own blog which you are currently reading. In an article Dr. Lenz quotes from my  FAQ on patents:"Q5: What is the most important purpose of the patent system today?Dr. Lenz then argues: "He then goes on to dismiss our side of the debate as a bunch of communists [...]"This is definitively not true. In fact, in my FAQ I wrote: "Patents are closely related to the concept of a "market" which in turn makes sense only within capitalistic economic structures. Therefore, lobbying against modern global capitalism can also be camouflaged as a battle for the rights of programmers against the patent system. So far it would perhaps not to be deemed frivolous to say that the contemporary anti-patent movement also has some aspects directing to a more general critics of global capitalism. [...]"The concept of "communist" used by Dr. Lenz intrinsicly involves a specfic role of the state, see e.g. Vladimir Lenin:"From the moment all members of society, or at least the vast majority, have learned to administer the state themselves, have taken this work into their own hands, have organized control over the insignificant capitalist minority, over the gentry who wish to preserve their capitalist habits and over the workers who have been thoroughly corrupted by capitalism — from this moment the need for government of any kind begins to disappear altogether. The more complete the democracy, the nearer the moment when it becomes unnecessary. The more democratic the "state" which consists of the armed workers, and which is "no longer a state in the proper sense of the word", the more rapidly every form of state begins to wither away.However, as we all know, the state did not "wither away" in the dictatorial communist societies of the twentieth century. And, an essential difference between old-fashioned "communists" of the past century and some radicalised proponents of the "intellectual commons" criticising the globalised capitalism which are behind many aspects of the current patent debate might be that the latter do not center their specific utopia around a particular concept of a state. They want more or less to be left alone from any state interventionism. Hence, I do not believe that there will be any benefits for either side from mongering with concepts like "communist" or "communism" in the current debate on Intellectual Property. In his posting, Dr. Lenz further discusses various other patent theories like the model of a contract of providing a full disclosure of an invention in turn for the grant of a temporary monopoly, or the usefulness of the disclosure of computer-implemented inventions. All these theories can have a potential to shed more or less light on certain aspects of the patenting process. I did not write that patents are exclusively to be seen as instruments to secure fair market values for inventions; I merely discussed that this aspect seems to be of particular importance at present. What I wanted to stress is that patents are (also) a means to a specific end of greatest importance in a globalised capitalistic economy, namely to make sure that the proprietor of the patent can obtain a fair price for the patented invention. Please note that I wrote "invention", not "software". There are at least two different aspects to be discussed on separate threads: Software written down and stored on a suitable data carrier as a fabric of code which is open for monopolisation by means of the Copyright Law, on the one hand, and software running on a matching processor as an embodiment of an invention, the latter open for monopolisation by means of the Patent Law, on the other hand. There is no "double protection" of software by both of Copyright and Patent Law: The subject-matter of these legal instruments are utterly different, namely the particular fabric of code and the abstract invention behind said fabric of code. So, what about the "fairness" of the price obtained by the proprietor of a patent? I only can state in an emotionless mood that the price depends, as ever, on the ratio of supply and demand. Many companies dealing with embedded systems seem not to have any specific problems with patents on computer-implemented inventions; see e.g. the telecommunications industry. Most of the trouble with the patent system seems to be related to open Personal Computers (PCs) and certain server computers mainly for usage in the context of the Internet which can be programmed freely by an end user. It would be wise to concentrate on specific problems in this field instead of attempting to foster an anti-globalisation and anti-capitalistic world revolution by means of destructing the patent system. What should be considered is the introduction of a source code exemption for Free Open Source Software (FOSS) as well as the introduction of collective licensing schemes which are well-known from modern Copyright regimes. For example, if IT standards are covered by a required patent which is open to licensing on the basis of a RAND license, a patent collecting society could be set up in order to manage the roalty payment administration. Of course, RF licensing schemes have many advantages in the context of IT standards; however, I think that it would be naive to assume that RAND licenses can be avoided in total.
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