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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Wednesday, April 20, 2005Debate on CII in Legal Affairs Committee of the European Parliament.Mr. Michel Rocard, former French Prime Minister, Rapporteur of the Legal Affairs Committee of the European Parliament for the Draft Directive on the patentability of computer-implemented inventions, is an outspoken opponent of the Common Position on the Draft Directive on the patentability of computer-implemented inventions (CII) finalised by the EU Council last March; see my earlier postings here and there. He has authored a  Document de Travail [in French only] setting out his thoughts on that subject.In particular, Mr Rocard seeks to introduce into the Directive a clause according to which a technical contribution must be defined as a 'controllable force of nature' or in terms of 'physical forces'. Such a narrow definition would obviously remove protection from inventions in a wide range of 21st century technologies, for example in view of computer-based technologies making use of physical considerations but not actually interfereing with any real-time physical interaction. Mr. Rocard also presses for severe limits on patentability of inventions that interoperate with other products or services. Removing protection for this aspect of computer-implemented inventions would in effect mean that they shall have no protection at all. In detail, Mr. Rocard writes: "[...] Afin que la directive puisse permettre le brevetage d'inventions contrôlées par ordinateur tout en empêchant la brevetabilité des logiciels, il sera nécessaire d'intervenir sur les points suivants :In particular Mr. Rocard's proposal to re-name the Directive from "patentability of computer-implemented inventions" to "patentability of computer-controlled inventions" or "patentability of computer-assisted inventions" makes me quite suspicious that he perhaps might not really have understood the very basics of the patent law: The distinction of the invention, on the one hand, seated in the realm of the intangible s, from the implementation or embodiment thereof, on the other hand, seated on the real world of tangibles and natural forces. Can an invention ever be "assisted" or even "controlled" in any meaningful sense of the strict concept thereof? Meanwhile the print edition April May 2005 issue 11 of the 'Intellectual Asset Management Magazine'("iam") is out, bringing a cover story with a dispute between Mr. Craig Opperman, a U.S. Patent Attorney working in California, and Mr. Jason Schultz, manager of EFF's Patent Busting Project. Mr. Opperman writes:"[...] I am not sure that underlying patent philosophy is to grant patents only to induce inventions that would otherwise not be made. Patents never have been intended to be an alternative to first-to-market incentives and many innovation incentives exist: first-to-market, patents, and others. Even so, there is plenty of evidence that software patents induce innovation. Many software start-ups would not have been financed without patent filings. Without funding, they would not have brought products to market, and would instead have languished with nothing more than ideas. Thus, patents are linked to capital, which in turn funds innovation. [...] It is precisely because software is so easily reproducible that software innovations should be patented. If they were not, the software giants would relentlessly copy young, innovative companies, and, because of their substantial resources, would squelch them. Survival of the fittest would become survival of the fattest ad, without software patents, few would compete in markets dominated by the behemoths, and innovation would be reduced substantially. [...]"Mr. Schultz refuses this view: "[...] In the United States, the power to grant patents comes from the US Constitution which states that Congress shall grant patents and copyrights to: 'Promote the Progress of Science and Useful Arts.' Thus, it is generally agreed that patents are granted as incentives to increase the rate of innovation and artistic progress, not imply as protection schemes to prevent larger competitors from entering marketplaces of smaller companies. This, the central question for any patent policy discussion, at least in the US, is this: does the particular patent regulation in question give us additional innovation and social benefit that the public would not otherwise enjoy without the regulation? If the amount of innovation is the same as we would otherwise have, than the regulation does not serve any public interest. [...] There is no doubt that many VCs require patent portfolios as escrow before investing. But this may be because they want to maximise their return, not because of they want to maximise overall innovation or public good."One point is to remark here that this debate is quite U.S.-centred in view of a certain particular promulgation in the quoted clause of the U.S. Constitution. As far as I do know we do not have similar clauses in Europe, at least not in Germany. The legitimacy of patenting computer-implemented inventions is not singularly bound to the creation of an additional amount of innovation. A second point is that Mr. Schultz is playing down the role of corporate profits. In a fashionable mood he groups the public interest as standing opposed to corporate profits. Is this really true under all circumstances? I doubt. Perhaps it is necessary to have a broader discussion of Adam Smith in the context of patenting.
Perhaps it is necessary to have a broader discussion of Adam Smith in the context of patenting. I agree. The modern (generally neoclassical) understanding of his work says that government intervention in the market is generally a bad idea, and that monopolies should not be arbitrarily granted to any company that asks. Of course, this what a patent is: a company comes by and asks for a monopoly in a small market, and then the government interferes in the market to provide that monopoly. The followers of Adam Smith typically acknowledge that there are times when a firm should have a monopoly, but it should be a last resort reserved for situations where there is no other way to get the goods/services out to the people. Would we have a drug industry if there were no govt-granted monopolies? Who knows. But we did have a healthy computer industry before software patents began trickling through the courts, so the monopolies being granted are not the last resort to save a moribund market. Yes, you're right that profits and public interest are generally not at odds on the free market. But here we don't have a free market; we have companies requesting that a government coerce others out of an existing, healthy market. Adam Smith would not approve.
> The distinction of the invention, > on the one hand, seated in the > realm of the intangibles, from > the implementation or embodiment > thereof, on the other hand, seated > on the real world of tangibles and > natural forces. An abitrary application of knowledge (intangible) does not automatically constitute an invention. It is fist an invention when that knowledge is an expression of a learning about how to apply natural forces to solve a problem. This is very different from a learning about how to solve a problem, where natural force are applied. Solving a problem with a paper an pencil requires application of natural forces, otherwise you couldn't move the pen, and the friction would not rub off graphite from the pen on the paper. However, solving problems with paper and pencil does not constitute an invention. The same logic applies if they are solved on a computer. -- Mvh. Carsten Svaneborg http://gauss.ffii.org Post a Comment
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