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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Sunday, February 20, 2005Some Observations by Mr. Rocard on Intellectual Property: "Like Speaking Chinese". Mr. Michel ROCARD,  former French Prime Minister, MEP (Socialist Group in the European Parliament) is a profiled supporter of the various anti-patent NGOs. Recently he said in an interview with LeMonde:Or, in an English translation: "[...] We never could have talked in a common language with the companies representatives we met - in particular those from Microsoft. Speaking about free circulation of ideas or free access to knowledge was like speaking Chinese to them. In their way of thinking, everything that is not usable for immediate profit ceases to be a growth vector. They don't seem to be able to understand that an invention which is a pure intellectual creation can't be patented. It's simply terrifying. Many of us, at the Parliament, agree to say that they never have experienced such a pressure and such a verbal violence during their parliamentary work. It is a huge case. [...]"Perhaps, Mr. Rocard has in the subtext of his statement something like a message to the effect that supporters of a proper patentability of computer-implemented inventions should not be too much surprised if those anti-patent campaigners, at least from the patent experts' point of view, do use various blatant misrepresentations in order to support their common cause. They are, the subtext goes, not really interested in patent law. In fact, the anti-patent campaigners are not even seriously bothering with tricky technicalities of the law but they want to oppose against the current globalised capitalistic system of making money out of knowledge in the broadest sense of those terms: Terms like 'free circulation of ideas or free access to knowledge' are said to be foreign matter for those company representatives he cites, and the other side, unsaid in the interview but nevertheless clearly visible, 'Intellectual Property' is deemed to be foreign matter for those circles to which Mr. Rocard directs his favours. In Mr. Rocard's interview, Microsoft merely appears as an illustrative embodiment of this kind of capitalistic desire to cash in lots of money out of selling knowledge-based products, be it on the platform of copyright or patents. The other players on such markets are clearly also covered by his verdict. Mr. Rocard seems to suggest that in fact the anti-patent campaigners merely form a (significant) subgroup of a broader protest movement desiring to free human knowledge from subjugation under the yoke of capitalism. Those 'companies representatives' cited by Mr. Rocard might naively have assumed that they have a common ground when talking to politicians like Mr. Rocard about markets and growth vectors - but in fact there is nothing else than a wide and deep gap, and, maybe, even no bridge over it. Only on the one side of the gap opposite to Mr. Rocard, there is a word of an ubiquitous Intellectual Property regime including not only a patent law covering computer-implemented inventions but also things like the paracopyright law (i.e., legal constraints on technologies which might have the power to hamper the exploitation of copyright).Patent professionals here and there tend to suffer shortcomings on two sides: At first, in many countries patent professionals are not (or not sufficiently) trained in copyright matters. Too often they simply do not know anything about the state of the affairs on the copyright and paracopyright theatres. Such knowledge is not of substantial importance for the day-to-day patenting business; however, any overall understanding of the system of Intellectual Property as it is installed today is incomplete without a deeper understanding of this other side thereof. The political disputes of our days around the system of Intellectual Property are not only related to patent law but also, in particular, to the newest paracopyright law. Secondly, they also may fall short of recognising that there is not only a bunch of individual critics of the patent system who have gone wild and can easily be controlled by means of conventional lobbyism but a powerful conglomerate of adversaries campaigning against the Intellectual Property system in its entirety, sharing something like a fuzzy but common utopia in trying to establish some kind of a new world which a much reduced role of Intellectual Property or even entirely free of Intellectual Property. Of course, the campaigners against the current system of Intellectual Property do not form a monolithic block. For example, the President of the FFII e.V., Mr. Pilch, is used to praise the holy regime of copyright versus the evil patent system but not everybody in the crowd is prepared to follow him in his euphemistic view of copyright.Did anybody say that there are connotations with the '68 movement of the past century? The WIPO controversy (see also here) exemplarily shows what is at stake.Every political gap requires some kind of a compromise if catastrophes are to be avoided. In this case it looks as if the political bridge of such a compromise needed to span the gap needs to be much more elongated than originally expected.
"but they want to oppose against the current globalised capitalistic system of making money out of knowledge in the broadest sense of those terms: Terms like 'free circulation of ideas or free access to knowledge' are said to be foreign matter for company representatives, and the other side, unsaid in the interview but nevertheless clearly visible, 'Intellectual Property' is deemed to be foreign matter for those circles to which Mr. Rocard directs his favours." Free access to ideas is what makes software compagnies able to write the software of their choice, whithout being slaves of others. So saying that free circulation of ideas is a foreign matter for company representatives is simply FALSE.
> So saying that free circulation of ideas > is a foreign matter for company representatives > is simply FALSE. Well, I thought of those company representatives meant by Mr. Rocard.
In the eyes of M. Rocard and many others in Europe, Microsoft's huge crime is to be American. No matter that it is a company employing tens of thousands of Europeans, no matter that it contributes hundreds of millions of Euros in tax revenues to European governments each year, it is American and is therefore bad. Of course, 25 years ago Microsoft began as a small start-up. Through VC funding, a commitment to innovation and the ability to create products people wanted to buy, the company has become what it is now. In the current climate in Europe, it is inconceivable that we could produce something similar. A state of affairs the anti-CII lobby is determined to see continues.
If Microsoft holds a patent on a key technology in europe it has the right to exclude *all* Europeans from producing and competing in that field. It can sell the technology - after paying people in another continent to produce it - with no competitors. Sound like a good idea to you? Microsoft's huge crime is *not* to be American. Its crimes are in fact having been found guilty of of Anti- competitive and abusive behaviour towards the free market by bot the US and the EU. Thats a pretty huge crime in my eyes : ) Those opposing the Directive on CII (which will allow software patents) want to compete and use capitalism and copyright to do all the best things that it can. IE: create jobs innovation and wealth. JW's point above is interesting because he actually makes my argument for me. Microsoft didn't need SW patents to get to the position it is in today. Why do they need them now? Hmmm Software patents are wrong. Period.
> Microsoft didn't need SW patents > to get to the position it is in > today. Why do they need them now? Answer, big fish = big target. Famous boss of a big company once said: If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique. If we assume this company has no need of any of our patents then the have a 17-year right to take as much of our profits as they want. The solution to this is patent exchanges with large companies and patenting as much as we can. Ok, you probably guess that it was Bill Gates and the text is from 1991. Source: http://ftp.std.com/obi/Bill.Gates/Challenges.and.Strategy Patents are not taken out to protect innovations, they are taken out as a bargaining chip to cross licence other patent portfolios, such that the problems om mutual patent infringement is mitigated. In short, you minimise risk of patent infringement suits by having many patents. Not dissimilar to minimising the risk of nuclear war by having nuclear bombs to lob at the enemy. For the patents see: http://gauss.ffii.org/Search/Granted/Applicant/Microsoft -- Mvh. Carsten Svaneborg http://gauss.ffii.org
By opposing software patents we oppose capitalism? Nonsense. The most pro-capitalistic party in Poland, UPR, opposes software patents. Capitalism assumes freedom to compete. Software patents do the opposite, they preserve monopolies.
I have received an e-mail message from the campaign manager of nosoftwarepatents.com, Mr. Florian Müller. The message, with his permission, is reprduced below: "In your blog, you describe MEP Rocard as a "supporter of the various anti-patent NGOs", and subsequently summarize his vision of a society founded upon free access to any knowledge. I would like to clarify that I do not at all share the general condemnation of the "merchandisation du savoir" that I read in a press release by the French "Parti socialiste" in December. As a software author, I have a vested interest in a legal environment that allows me to derive commercial benefits from what I create. I am not against our economic system, and I regret the fact that a vocal minority among the opponents of software patents has a troubled relationship with copyright. The Electronic Frontier Foundation, which regrettably supports the developers of a piracy-enabling technology named "bnetd" in court against my friends at Blizzard Entertainment, is one such example that makes me uncomfortable. However, I have not yet arrived at a definitive conclusion as to whether the French socialists simply use a philosophical and flowery language to express their vision and thereby make their political demands appear broader than they actually are. In a literal sense, I would disagree with a large portion of what they ask for, but taking the cultural context into account, it's possible that their actual position is more acceptable than it seems at first sight. I have not yet had the chance to communicate directly with the French socialists to clarify where they stand versus where I want to go. Please feel free to publicize this clarification."
>I have not yet had the chance to >communicate directly with the French >socialists to clarify where they stand >versus where I want to go. I think that the answer at present is that they simply do not know which side of the fence to sit on, or where they want to go. Most of the replies I have seen so far from French Socialist Party MPs and MEPs in response to questions like "Are you for or against software patents ?" have inevitably resulted in a deviation of the question, or political rhetoric. The real question, of course, is : "How many votes can I win by swaying one way or the other ?" This may sound cynical, but is unfortunately oh so true in a country where the politicians seem to have forgotten that they are supposed to represent the interests of their electors. Post a Comment
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"[...] Nous n'avons jamais pu parler un langage commun avec les représentants des grands groupes que nous avons rencontrés - et notamment ceux de Microsoft. Leur parler de libre circulation des idées, de liberté d'accès au savoir, c'est leur parler chinois. Dans leur système de pensée, tout ce qui est ôté au champ du profit immédiat cesse d'être un moteur pour la croissance. Ils ne semblent pas pouvoir comprendre qu'une invention qui n'est qu'un pur produit de l'esprit ne peut être brevetable. C'est tout simplement terrifiant. Beaucoup d'entre nous, au Parlement, conviennent que jamais ils n'ont eu à subir une telle pression et une telle violence verbale au cours de leur travail parlementaire. C'est une énorme affaire. [...]"