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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Sunday, April 09, 2006The Dispute On Patents is Going On.I have reported earlier that  Mr. Pieter Hintjens, CEO of iMatix, had been elected President of the FFII in 2005. Now I was made aware that Mr. Hintjens has opened a personal Blog called Heironimouscoward. In his first Blog entry ever he wrote:"[...] Let me describe the FFII. You take a big bag, you fill it with ten cats. These are the FFII activists. Nice, friendly, but they have claws and killer instincts. Now you put a dog in the bag. This represents the professional lobbyist. Smelly, subservient, and willing to do anything for a piece of meat. Close bag, listen to the noise, open bag. That is what the FFII does to the normal cosy process in which big business defines laws, lobbyists explain these to politicians, who then wrangle the laws into existence.Hm. Would you please tell me where is the borderline between unfaltering determinedness governed by a responsible personal conscience, on the one hand, and some kind of closed-minded self-righteousness like the behaviour of fundamentalists, on the other hand? So, the picture imagines ten cats acting on behalf of FFII versus only one single dog sent by the evil proponents of the patent system. Ok., at least the framework of the figures as indicated might be right in terms of the order of magnitude. Taken the numbers of activists, the anti-patent campaigners clearly outnumber the voices of the patent people, at least as far as counted on the Internet. And, they are confident to see later on that the effect of the treatment of the pro-patent people by the efforts of anti-patent campaigners will at least be as severe as the wounds grated into the flesh of the poor single dog by virtue of the claws of the ten angry cats. Time will show as to whether or not this utopia will become reality one day. But what about the "total, unshakeable, systematic conviction that they are on the side of right" of those anti-patent activists? This sounds quite like hubris. Do you want to see any substantial political influence or power handed over to guys who are proponents of some total and unshakable conviction not only in questions concerning first principles of our western industrialised societies but also concerning very particular questions of how to implement sector-specific laws? Apparently there seems to be little extra space for some kind of healthy pragmatism. Recently even a professor of law and history of law at Columbia University is publicly reasoning about a possible death of the patent system, imaginating a future "confrontation of cataclysmic proportions" between proponents of the patent system and the anti-patent crowd, whatever that might mean but provoking a pseudonymous comment playing around with an answer like "they will go out in the streets and burn cars and embassies" in an only to a half portion jokey and ironic fashion.It appears as if Mr. Hintjens likes telling tales with animals well beyond cats and dogs. In another post he wrote about rabbits and foxes:"[...] In the 1980's, scientists studying the population curves of snowshoe rabbits and foxes (ok, it was lynxes but no-one except Canadians and Scots knows what they are) in the Canadian north, found the populations went up and down in cycles. Basically, rabbits breed faster than foxes, so a rabbit population can grow in one season much faster than the fox population, stopping only when they reach the limit their grassy ecosystem can support. The rabbits have a great first couple of years, but then the fox population catches up, and suddenly there are too many predators for the rabbits. The rabbit population crashes, and a little later, so do the foxes.So, in Mr. Hintjens' view, "innovation" is equal to rabbits, and "soft patents" (whatever that term might mean) are equal to foxes. Whereas such kind of tales surely have the potential to be widely adopted by many of his followers to achive a huge propagandistic effect, he owes us any solid substantiation for such kind of oversimplication. The truth is that the patent system does not kill "innovation" as such but enhances the prospects of some kind of business models wherein innovation processes can be embedded at the expense of others wherein innovation processes can be embedded either. But discussing the complex effects of patents on real-world business models is a much harder task that cannot be done by simply telling tales. While it is true that any statistical correlation, taken as such, between "innovation" (whatever the instruments used for measurement might be), on the other hand, and "IP protection", on the other hand, does not implicitly indicate any cause-and-effect relationship exploitable by leveraging IP protection to create more innovation, it is also true that such correlation is no evidence for any cause-and-effect chain the other way round or for the non-existence of any related cause-and-effect relations. Mr. Hintjens sketches a political scenario at the end of which comes a total breakdown of the patent system: "[...] I'll sketch what I believe are the five [eight?, AHH] stages of the software innovation and patent boom and bust cycle.So, "can patents, once granted, be revoked without creating incredible outcry"? Of course, they can't be revoked that easily because of the posession of rights granted by a state like patents constitutes a position protected by the provisions of the respective consitution protecting the status of property. Unless ... well, unless the anti-patent crowd would decide to implement something like this ominous "confrontation of cataclysmic proportions" as mentioned above. I think at least at the time being we should not go further into the details of such options here. But the grant of new patents could well be hampered in future if there were political majorities demanding such a step. Mr. Hintjens argues that "[...] there is no way to separate the bad software patents from the good. Any filter or gate or barrier that lets through good patents (if such animals exist), also lets through an infinite horde of bad ones." If this assertion is considered to be true: Why on earth does FFII press for some kind of amendmends for radical narrowing the range of patentable subject-matters in patent law? This gives me an opportunity to reiterate my observation that most part of the anti-patent crowd appears to be glued to a hostile discussion of the pre-grant aspects of the patent law only. Obviously they like to ignore the entire set of post-grant instruments for aligning IP with reality. Take, for example, not only the system of exemptions embodied within (continental) Copyright Law but, in the realm of patents, also Article 5ter of the Paris Convention:"[...] In any country of the Union the following shall not be considered as infringements of the rights of a patentee:Solving the problem of a potential hampering of the world trade caused by the threat of locking up foreign ships in seaports on the basis of local patents enforceable on the territory to which the respective seaport belongs on the post-grant side of the patent law was a much better idea than, on the pre-grant side, starting a debate on whether or not the body, machinery, tackle, gear and other accessories of a vessel "as such" should be patentable. Technorati Tags: Patents
Thanks for the corrections to my post. It's better now. Your point about post-grant softening of patents that are having a negative economic effect is certainly interesting. Take as example the difficulty that the IT industry has today in defining new standards. It is, by many accounts, near to impossible to define a new standard and exclude the risk of patent ambush. Without new standards, the IT industry cannot rise to new challenges - this is perhaps the most severe risk that software patents present. So, perhaps we can define a post-grant regime to soften this. I'd be interested in your ideas on this. The FFII focusses on the pre-grant issue simply because in Europe, software patents have been formally excluded for 30 years and the debate is clearly on whether or not they should be allowed, not on how to mitigate their effects. There has not been a clear demonstration from those who seek software patents on the economic value of these. The creation of new private monopolies should be based on more than dogma, but it can be resisted on the basis of dogma. Monopolies are bad, unless clearly demonstrated otherwise. IT has grown and flourished under copyright, and is being stunted under patent law. This is visible to any practitioner. This is why the FFII consists of individuals who see clearly that the fight, in Europe, is to prevent software patents becoming established.
About the focus on pre-grant aspects: I think this is only natural for 2 reasons. Firstly, as far as I've seen the "entire set of post-grant instruments" doesn't seem to be all that impressive: at the Industrial Property Masters' course I took at the Radboud University (Nijmegen, NL), I don't remember any post-grant instruments being covered (apart from those fixing patents that shouldn't have been granted in the first place). The example for visiting vessels/vehicles you mention seems to be quite a corner case. Secondly, there is the problem that a patent can be destructive without being valid: if a post-grant instrument requires expensive (legal) action, for example, the patent holder can probably intimidate small businesses that do not have the resources to fight the legal battle against the holder of the invalid patent. I'm not against (`soft') patents per se, but I think patent abuse is a grave problem that seems best addressed with pre-grant instruments.
"[A]t the Industrial Property Masters' course I took at the Radboud University (Nijmegen, NL), I don't remember any post-grant instruments being covered (apart from those fixing patents that shouldn't have been granted in the first place)." You are right. Contrary to the Copyright Law which, at least on the European continent, lives from its exemptions, post-grant exemptions currently not play such a huge role in Patent Law up to now. Exeptions are the exemption for non-commercial private use of a patented invention and a very few more. But what I argued is that just this is part of the problem. Many patent people as well as many anti-patent campaigners appear to be quite blind on this spot. "[T]here is the problem that a patent can be destructive without being valid" The nice effect of exemptions is that I do not have to know whether or not a certain patent is valid. I even do not have to know if there is any patent at all. If I am sitting in my private rooms, privately tinkering with electronic components for non-commercial purposes, I am perfectly sure that it does not matter if there are patents covering my tinkering. The bigger problem appears to be to propose exemptions solving real-world problems without effectively crippling the patent system in its entirety. Nobody should expect that one magic exeption could be noted down solving all of the patent troubles. I would rather guess that it must be, like the situation on the Copyright theatre, a patchwork of small hand-tailored exeptions with and without payments in accordance with the various business models out there. For example, the German system of radio broadcasting companies runs on the basis of Copyright exemptions: Rather than having to negotiate with the rightholders for each song they broadcast they put on air what they like, report to the collecting society and pay some money according to some pre-established tariff. I'm currently thinking of three examples of possible post-grant exemptions for the patent system in conjunction with software: a) Source code exemption: Source code is somewhat ambigous insofar as it is at the same time means for human-to-human communication as well as means for controlling a machine. It might, hence, considered as interference with "freedom of speech" to shut down a source code repository on the net because of there is a patent somewhere which might be infringed if the source code is compiled, linked, and run on a processor in a specific technical environment. b) Collective Licensing for patents: It might be worth to think of establishing a legal framework for collective licensing concerning patents on CIIs the legal basis for collecting societies. c) Maintaining standards: I could, for example, imagine the Patent Law to be amended by introducing a rule allowing major standardising institutions like DIN, ISO or W3C to publish a full technical disclosure for a proposed interoperability standard in some kind of an Official Gazette issued by some competent Authority on EU level. Then, each and every patent holder has an opportunity to oppose against this proposal within a certain term of, say, nine months or so. If a patent holder opposes, the standardising organisation as well as the public will be notified accordingly. An opposition can be absolute (i.e. the patent holder refuses to license the patent at all) or relative (i.e. the patent holder is willing to provide a RAND license only). If a patent holder does not oppose in due time the grant of a RF license will be stipulated by law. Such procedure would not unduly harm the interests of patent holders (they merely have to closely watch the Official Gazette and make up their mind) because of they will not be forced to grant any license. On the other side, if no opposition has been filed, the standards bodies can be sure that the proposed standard is in fact patent free. If oppositions are raised, they can re-think on whether or not drop that proposal. However, as in many other cases, the problems are in the gory details. For example, it will not be easy to deal with unexamined or even unpublished patent applications. Furthermore, the proposed procedure might not scale very well. If thousands or even tens of thousands of proposals would be published per year, the burden for the patent owners would be clearly inacceptable. On the other hand, patent owners must be hindered to simply block any standard without even looking at the details by simply filing objections on the basis of each and every patent available in their patent portfolio. If the total number of published proposals per year is sufficiently low this might be achived by requiring a modest Official fee or by imposing a duty to substantiate the Opposition.
I think many people have thought of such mechanisms. I certainly have, they are fairly obvious answers to the question of "how do you stop software patents from completely destroying the IT industry". The need to protect standards from patent ambush, for instance, is probably one of the most significant. But note the rapid introduction of terms like "RAND", which really means the exclusion of open implementations. The reason you can write this blog at all is thanks to hundreds of fully open standards... the Internet would never have existed if HTTP, TCP/IP, DNS, and all the other protocols we use daily had been RAND. However, none of these post-grant fixes solves the most dramatic problem with software patents (and it is a problem that is fairly unique to this type of patent, and possibly the key to its danger). Namely, how expensive is it for the developer of a new product avoid accidental infringement? There is surely a term for this: the cost of avoiding infringement. If accidental infringement is not only possible, or common, but ultimately inevitable, then we have a problem that no post-grant fixes will solve, because the normal and essential business of writing software for profit will be halted. I write software for a living - this is my business, and in general it is a good one. My work is all entirely original, I consider myself to be a very prolific and creative designer. Yes, I could probably file hundreds of patents. But each product I make undoubtedly infringes on other patents, all the time. This process of infringement is obviously unintentional - there is no question here of attempting to steal someone else's work. But the question is, can I avoid it and still be productive? The answer is either 'yes' or 'no'. If yes, then I'm happy. I will do my work, building software systems, creating jobs and paying my taxes. If no, then I will eventually stop. The economy will lose a tiny but non-zero engine of wealth. EU-wide, hundreds of thousands of tiny engines will slow, and die. I am not being melodramatic. It is a process we can already see in the USA. I would be very interested to have your views on this. Post a Comment
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