 |
|
CONTENT SYNDICATION 
|
|
CONTENT SYNDICATION
|
|
BLOGROLL OPML:
|
|
|
|
Search in IPJUR.COM
|
BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Saturday, November 20, 2004Some Remarks on the Gist of the current Anti-Patent Campaigns.When the current anti-patent movement was in its infancy, the role of its spiritus rector clearly had to be attributed to Mr. Hartmut Pilch. Having worked in the patents business as a translator and interpreter for many years it seems as if he might have had experienced one day in the late 1990s something like a "Road to Damascus" experience (subjective and bound to his personal horizon only, of course) transforming him from a beneficiary of the patenting business to one of its most vigourous adversaries. Mr. Pilch's motivation to found the FFII e.V. seems, at least partially, to be drawn from aspects of morality. For example, on July 19, 2002 he wrote in a posting to a German mailing list:"[...] Nur die Patenanwälte suchen ihre Rechtfertigung im Status Quo (30000 Rechenregelpatente, 4 Millionen Arbeitslose etc). Wir suchen sie im Gemeinwohl (Innovation, Wettbewerb, Software-Qualität, Freiheit etc) [...]"I would like to offer my English translation thereof as follows: "[...] Only the patent attorneys are seeking their justification within the status quo (30.000 patents on calculation rules, 4 millions of unemployed etc.). We are seeking [our justification] in common welfare (Innovation, competition, quality of software, freedom etc.) [...]"So, for Mr. Pilch the patent attorneys are the bad folks making up the roots of all evil. Not a very differentiated one, but a view clearly based on a certain concept of morality (albeit the same is of a merely notional and lunatic nature). On September 27, 2003 Mr. Pilch further portrayed patent professionals as a segregated network not serving the interests of the economy but selfishly concreting their own power:"[...] Es ist alles der gleiche Kreis, mit den gleichen Karrierewegen. [...] Patentrechtsexperten, die in der Regierung sitzen, gehen zu den gleichen Konferenzen und bewerben sich in ein paar Jahren bei den gleichen Arbeitgebern wie die Patentrechtsexperten in der 'Industrie'. Zwischen all diesen Leuten besteht viel mehr Gemeinsamkeit als etwa ziwschen der Patentabeilung und der F&E-Abteilung einer einzigen Firma wie Siemens oder SAP. [...]"Or, in my own translation: "[...] It is all the same circle, with the same careers [...] Patent law experts employed with the government visit the same conferences and will apply in a few years for a job with the same employers as the patent experts in the 'industry' do. All of these guys have more in common than e.g. people from the patent department and the R&D department of a single company like Siemens or SAP."Hence, the current political debate is generally seen as the result of a somewhat manichaeic dichotomy of the selfish patent professionals on the one side and of the altruistic anti-patent activists on the other side. However, during the past months or so the role of Mr. Pilch within the current anti-patent movement seems to have been weakened. Mr. Florian Müller has entered the stage, setting up the nosoftwarepatents.com campaign website independently of the FFII e.V. Maybe that Mr. Müller is one of the critics from within the anti-patent camp lamenting about the poor condition of the general FFII website. Whatever his personal motives for the creation of that new campaign website might have been, as a matter of fact it is to be recognised that he is now gaining more and more influence. Perhaps that Mr. Müller can be seen as the new shooting star of the anti-patent campaigning scene.
He obviously shares with Mr. Pilch a sense of disgust with regard to patent professionals, denouncing them as a "patent mafia":"[...] The European patent mafia and its political friends deny that there are business model patents in the EU. However, that's a complete lie. [...]"But does Mr. Müller share also Mr. Pilch's moralistic attitude? Mr. Müller wrote:"[...] To me, patents would also be quite nice if I were a Microsoft and had such a huge portfolio that I could cross-license with anyone, including IBM. Since that is not the case, and will not be the case anywhere in the foreseeable future, I need to be protected from patents, not by patents, because on the bottom line the negative implications far outweigh the positive ones. Software patents do a lot more injustice than justice. [...]"So, Mr. Müller would arguably accept patents even on computer-implemented inventions if only he would be in a position to effectively use them to overwhelm his competitors. But he himself feels to be too weak for such an attempt, and consequently he criey foul, demanding from politics to be protected from patents, not by patents, decrying the patent system as unjust because of he feels inapt to make use thereof. To me Mr. Müller's confession seems to be quite interesting. That is no more a language of morality but of salesmanship and business advantages. It makes clear that the present disputes over patent policy are not really related to any fight between "good" and "evil" positions. Those disputes are, instead, simply related to proponents of one particular business model (without any patents, at least without patents on computer-implemented inventions) badmouthing proponents of another particular business model (including the option to patent computer-implemented inventions). In fact stepping up the political pressure as undertaken by the anti-patent campaigners by urging policymakers to restrict the scope of patent law seems to aim to prevent certain anticipated changes of the conditions of software production. It is, in essence, a conservative movement desperately attempting to preserve certain existing business models against emerging others to come. A traditional way of manufacturing software is characterised by some kind of unity of abstract functional problem-solving knowledge on the one hand and software code text on the other hand: The programmer attempts to understand the problem as posed, finds an abstract solution, and then goes ahead to implement the abstract solution by coding a computer program. However, there seem to be strong forces out there desiring to implement different business models characterised by a separation of the abstract functional problem-solving knowledge on the one hand from the production of the software code text on the other hand. The coder's work is outsouced, only the the abstract functional problem-solving work is done at the first place. Such alternative business models, however, can work only on the basis of a sound patent protection of computer-implemented inventions because of the abstract functional problem-solving knowledge as derived in the first stage of this process would otherwise be vulnerable to exploitation by free riders. By its ability to enable a separation of knowledge, the patent system is one of the cornerstones of any "knowledge economy" wherein knowledge is transformed into some kind of commodity which can be exchanged in trade. Such separation of abstract functional problem-solving knowledge on the one hand from implementation-oriented craftsman knowledge on the other hand is quite common in other industries except the software business. For example, no responsible person in the automotive industry would allow a re-design of a car model to go into mass production without having scrutinised the origin and licensing conditions of any external abstract problem-solving knowledge used therein. The essential difference of the software business against other branches of the economy might emerge from the fact that general purpose computers are extremely cheap today so numerous individuals and firms on the lower end of the SME scale are enabled to unfold their business in this branch without having huge capital stocks. In 1994, the European Patent Office had published the results of a representative survey concerning the acceptance of the patent system in Europe. This study clearly pointed out that SMEs significantly underused the patent system. Now, it seems as if in those days SMEs have passively ignored the patent system whereas nowadays some of them are no longer staying aside but, inflamed by Eurolinux, actively attempting to undermine the patent system. Therefore, one of the key insights for curing the present turmoil around the patent system might be that one of the more important causes thereof is a scarcity of acceptance of the present patent system by SMEs in the field of IT. This deficiency might be considered partially home grown as it looks as if in the 80es and 90es of the past century little efforts have been made by patent professionals to remove in the general public the widespread urban myth that software-related inventions cannot be patented at all in view of Article 52 EPC. Perhaps the current difficulties can be seen as something like a late nemesis in return for the lapses that occurred during those years.
| ||||||||||||||||
