 |
|
CONTENT SYNDICATION 
|
|
CONTENT SYNDICATION
|
|
BLOGROLL OPML:
|
|
|
|
Search in IPJUR.COM
|
BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Thursday, May 04, 2006The War on Intellectual Property Law: "Framing" as Ultimate Linguistic Weapon. Mr. Bruce Byfield writes in his higly informative article on NewsForge:"[...] The Free Software Foundation (FSF) has always been concerned about the power of language. Most famously, it is known for insisting on the term "GNU/Linux" and giving "free software" equal billing with "open source" in order to receive its due credit. [...]The utilisation of "framing" is, in my view, essential for a thorough understanding of the present debate on Intellectual Property Law. Not only with regard to  Mr. Stallman's rejection of the concept of Intellectual Property in its entirety but also concerning linguistic warfare projects like replacement of "patents on computer-implemented inventions" by "software patents".Why can promoting the concept of "software patents" against "patents on computer-implemented inventions" be seen as "framing"? Now, it is much easier to suggest to the common layman that patents on computer-implemented inventions are "illegal" because of they "violate" Article 52 EPC than to argue on the same track with "patents on computer-implemented inventions". Article 52 speaks of "programs for computers" which, if taken "as such", are not patentable. The general public addressed by the various anti-patent campaigner's groups might well feel overstrained to correlate "patents on computer-implemented inventions", on the one hand, and "computer programs as such", on the other hand, exactly as desired by those campaigners. As "software" is clearly synonymous with "computer program", the general public is much more inclined to believe that something like "software patents" must be illegal if so told by the anti-patent campaigners. The fact is that the concept of "patents on computer-implemented inventions" much more precisely describes the factual core of the debate but the anti-patent campaigners have been very successful in "framing" the entire political dispute by pressing the language of "software patents" no matter how many false conclusions are facilitated on the juridical terrain. I can enjoy a truthful debate on the limits of the patent system. But this way of "framing" the debate as done by the anti-patent campaigners during the past years appears to be somewhat filthy. Technorati Tags: Patents
No, Axel, it's pretty clear to all concerned that the patent-pushers are the one attempting debate-framing with "computer implemented inventions", a term invented (perhaps even originally by you yourself, though my german is vague I think you may have been responsible for an "expert opinion" subsequently cited by the EPO - how "delightfully" circular) to get around the inconvenient EPC. If this were not the case, it wouldn't be possible to put so many american software patents and european "CII" software patents in direct correspondence, and it is possible, and you know it. Every European must be free to compute. Free to sit down and start typing in any program they can dream and run it without having to look through patent databases or keeping patent-lawyer-parasites in consulting jobs. If that means the death of the patent monopoly system, so be it. The fact it's so much cheaper to implement in a general purpose computer+software what it used to take a dedicated special-purpose device to do is NOT an indicator the patent system should be extended to software, but that it should be removed from special-purpose devices. The patent monopoly system is a hang over from precapitalist feudal times anyway. Since the 20th century it's been known that monopolies are counterproductive. It's pretty clear the EU Commission and the EPO are in cahoots on this, corrupt servants of anti-free-market business interests both. Both need to be reined in. McGreedy would do well to remember that pro-business and pro-market are not the same thing.
I feel honoured for being considered inventor of the term "computer-implemented inventions" but, sad to say, assuming this would be entirely wrong. And, concerning your assertion "Every European must be free to compute", I beg to differ. Not every European is free to build autotomobiles or dishwashers without considering patents of third parties, and everybody making computer programs run on a processor within a context of sufficient technicality must take all necessary care to avoid patent infringement, either.
How you are interpreting a rejection of a term describing a concept as rejection of a concept is a little bit beyond me, but that's probably just me. What I would find more interesting is: What *IS*, in your view, the actual difference between "software" and a "computer implemented invention"?
Not every European is free to build autotomobiles or dishwashers without considering patents of third parties But they definitely should be, The fact they currently may not be is no good reason for Europeans to agree to extend the patent monopoly brain-damage to any more fields! "We've poked out our eyes and bound our hands, it's only fair you do too!" To put it politely, "f*ck that". I wasn't asked if I agreed to automobile or dishwasher patent monopolies, the practice of granting patent monopolies on mechanical devices was instituted before I was born. If I had been asked, the answer would have been "hell no". I was asked about software patents, and the answer was "hell no". Even though automobiles and software are really very different fields, I object to patents in both fields (there ARE valid reasons to treat software and automobiles and dishwashers quite differently in terms of marked-distorting incentives that might be offered, but in all cases I object to patent monopolies) If I ever find myself in the (rather unlikely) situation where I might actually "violate" a automobile or dishwasher patent, I will do so merrily with ZERO respect for such an unjust law as patent law. As to the complaints of "intellectual 'property' 'rights' holders" in the face of that, I view them very roughly as I would the complaints of slave owners or husbands at having their slave or wife ownership 'rights' eroded. [No, I'm not saying that patents are "as bad as" slavery by any means, just that merely calling something a "property right" doesn't mean it's worthy of any respect]. (It's particularly scary that if certain people who want to criminalise "incitement" of violations of I"P" get their way, I would probably risk being thrown in jail just for saying the above!) If anything the early successes of the software industry in the absence of software patents (remember the famous Bill Gates quote...) should suggest that granting of patent monopolies in other fields should be critically reexamined: As far as I can see, the industrial mechanical engineering field has been slowed down and impeded by patents ever since Watt. If old industries are using software, they should be brought into line with the software industry, not vice-versa: we shouldn't have to adopt patents, they should abandon them.
@g.: What I would find more interesting is: What *IS*, in your view, the actual difference between "software" and a "computer implemented invention"? "software" is a sort of ligustic fabric made for and dedicated to conrolling a processor. An "invention" is some sort of abstract idea. A "computer implemented invention" is an invention that lies in the ideas and abstract concepts of the linguistic fabric. One and the same CII can expressed in many ways by very different linguistic fabrics. A CII never is protected by Copyright.
The problem with the use of "CII", Axel, is that it means nothing in computer science terms. It is a pure legalism. There is no concept of a "CII" as distinct from software in the annals of computer science, and there never can be. You say that a programmer writing software "of sufficient technicality" must be aware of what is patented. Yet, the EPO grants thousands of software patents (or patents on CIIs, as you call them) which demonstrate clear that in the minds of the patent experts themselves "technical contribution" and "as such" mean nothing, and that what is patented are pure ideas and methods. You are correct to say that ideas and methods are not copyrighted, and that software source code cannot be patented. But you are wrong to imply that software is simply source code. It is not. Software is a cultural product, like music, writing, art, dance, and language. The question is not "what does CII mean", a question that has as much meaning as "how many angels can dance on the head of a pin", but "does it make moral, economic, and common sense to allow monopolies on cultural products?" The day you allow me to claim patents on contract models that you as a lawyer need in order to do your work, I will accept, as a programmer, that lawyers can own patents on the ideas and models that I as a programmer need to do my work.
You wrote: An "invention" is some sort of abstract idea.. As such, this is wrong. A mathematical theorem is some sort of abstract idea, and can't be patented (under EPC in particular), precisely because this is not an invention. Can you be more specific about exactly what sort of abstract ideas you think are inventions ? Post a Comment
| ||||||||||||||||
