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Saturday, September 11, 2004

Mr. Hartmut Pilch on "Industrial Copyright".

Mr. Hartmut Pilch, President of the

FFII e.V., has launched

another proposal how to wreck the patent system:

"[...] Copyright is already the main IP system for non-aesthetic creations such as instruction manuals, software, architecture and, to varying degrees in different jurisdictions, functional industrial design. It is considered to be appropriate for logical creations (as opposed to 'technical inventions' in the classical patent theory). Currently many people observe 'convergence' of both, and the trend is to solve more problems at the level of logical creations. [...]"

So, the question seems to be under which circumstances it might be necessary to drop the complex and costly procedure of verbalisation of an invention for filing it with a competent Authority for registration. In fact, an important difference between the respective subject-matters of copyright law, on the one hand, and patent law, on the other hand, is of a statistical nature:

The statistical probability that any given creative text of a substantial length authored by a human being is reproduced accidentally and independently by another human being is virtually vanishing. If two texts authored by two different persons are identical or very similar then this may have two reasons:

Plagiarism, i.e. the second person has cheated and created a derivative text using knowledge of the original first text; and/or
the texts involved are determined by intrinsic structures so that they cannot be seen as creatively authored creations.

The uniqueness of the fabric of characters and words composed to form an act of literature in itself makes sure that as soon as the identity of the first author is established e.g. by a copyright note the conceptual prerequisites of copyright are fulfilled; the act is self-explanatory or self-documenting so far and, hence, no further registration procedure is necessary in order to establish copyright protection. With other words, a work or act of literature embodies its own fingerprint. And, because of the probability of any independent accidental re-creation of some piece literal work is negligible, copyright law merely provides an exclusive right to copy and to create derivative works but no exclusive right to create a certain work.

However, this scheme does not work with inventions in the sense of the patent law. If two different persons A and B are bringing an alloy to market composed of 57% of metal X and 43% of metal Y, person A being ahead in time relatively to person B, then there is no statistical hint or evidence available which might help to determine whether B has copied the alloy or has independently re-invented the same. Independent co-inventions may occur at a non-vanishing probability, and in order to award the first inventor, patent law cannot be confined to any exclusive right of copying an invention. To the contrary, it is necessary that a patent provides an exclusive right to make commercial use of a patented invention irrespective of whether it is copied or re-invented independently. The fact that in most countries the first-to-file applicant is awarded a patent but not the true first inventor is based on a procedural fiction that in most cases the applicant is in fact the true first inventor or has the right to patent the invention obtained from the true and first inventor. Any first and true inventor not hurrying to the Patent Office to apply for a patent is effectively punished for this delay because any second inventor can successfully obtain the patent. This effect is acknowledged in most countries except the U.S. in order to simplify the grant procedure.

Inventions are not self-explanatory in the same sense as copyrightable subject-matters are. A thing made of that alloy in itself does not document the invention because of nobody knows that it is just the composition of the alloy which makes that thing distinct. Inventions do not document themselves; they have to be documented by means of verbalisation.

Moreover, if A and/or B simply are in possession of the technical teaching to produce and use said particular alloy without bringing any embodyment of the invention to market or publishing a verbalisation if the invention then there is no visible indication whatsoever from which the general public could learn something relevant about the inventor of the alloy. The grant of a patent requires that the applicant is in possession of the invention. Not required is that a tangible embodiment of the invention really exists; it is enough that the inventor just knows what and how to do.

The problem is that the identification and verbalisation of an invention is complex and, hence, expensive. Moreover, specialists have come up for doing that job. And here we recognise what is the real point for Mr. Pilch favouring a "Copyright Only" doctrine:

"Features of future Integrated System of I2P: [...] low complexity, care to avoid creation of special interest groups that hijack the legislative process. [...]"

Ah, identifying and verbalising inventions for purposes of the patent law would require patent professionals like Patent Attorneys, those ugly guys who tend to "hijack the legislative process". In order to eliminate them out of the knowledge business economy, Mr. Pilch is desperately seeking an alternative concept which avoids such verbalisation.

Strange enough, as a promoter of openness in the software business in form of F/OSS, Mr. Pilch favours a culture of secrecy with regard to inventions:

"Publication of claims and disclosure at an early stage impose burdens and disrupt rather than support the natural system of innovation incentives based on fast movement, business secret, competition etc. There are at best a few exceptions where codification of claims with their inevitable corollary of early disclosure could still be justifiable in the future. These are related to special circumstances where high burdens are already imposed by facts such as governmental safety certification requirements (e.g. clinical testing) [and] expensive experimentation with forces of nature (classical domain of "technical invention")."

It is really hard to understand the logic of such proposals if there is such a thing at all.

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