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Warum Swpat so trivial sind



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                           [32][translatable text] [33][howto translate] 
                    Why are Software Patents so Trivial?
     Most software patents are trivial and broad. The reasons are to be
    found in the patent system itself rather than in the insufficiencies
      of the examination process. On the one hand, the requirement of
   inventivity is dead and cannot be revived within the existing system.
   On the other hand, by introducing software patents, the lawcourts have
    killed the only remaining obstacle on the road to total triviality:
          the requirement of concreteness and physical substance. 
     * A problem of law, not of patent examination
     * Why not raise the "inventive step" standard?
     * The broken regulative: "technical character"
     * Further Reading
A problem of law, not of patent examination

   By browsing through our [38]European Software Patent Database, you can
   easily compile a "horror gallery" of impressively trivial and broad
   patents. It will be much more difficult to find even a single patent
   on a method that a programmer would consider worthy of admiration.
   Some people say that this is because the patent offices do not do
   their job well. If the criteria of "novelty" and "inventive step" aka
   "non-obviousness" were applied 100% correctly, these people say,
   software patents wouldn't do much harm. Some have been prophesying for
   a decade that is only a matter of time until this problem will be
   solved. However the solution is further away than ever.
   The following dialogue between Ramon Garcia Fernandez, a spanish
   information scientist, and Steve Probert, deputy director of the
   British Patent Office, conducted 2000-112-20 on the [39]Patents
   Mailing list at aful.org, goes right to the heart of the problem:
          My disagreement with software patents is the philosophy of most
          patent offices. For me, a patent should be granted only when
          there the research needed for the invention is expensive, so
          that said research would not be posible without the incentive
          of the monopoly. By contrast, the opinion of patent offices
          seems to be that the inventor should somehow have natural right
          to monopoly. They seem to think that the invention is
          intrinsically a very difficult process and that all incentive
          to it is small (I would like to hear Steve's opinion). By
          contrast, the invention of a method to solve a problem is part
          of the daily work of a programmer.
          I don't really want to express an opinion because I think that
          would be wrong for me as a Civil Servant and an official of the
          Patent Office. What I would say is that the patent system has
          never differentiated between inventions on the basis of how
          much the underlying research cost. It doesn't even distinguish
          between those inventions that are truly valuable and
          ground-breaking, and those that are [comparatively] trivial and
          insignificant. As the law stands, we would not be able to do so
          even if we wanted to. Only if an invention is known or obvious
          can we raise a legal objection.
          To some extent the system should be proportionate and
          self-regulating - in industries where the research costs are
          very high (eg pharmaceuticals), the patents will be more
          valuable. (So licencing costs will be higher etc.) OTOH, where
          the development costs are lower it will often (but not always,
          I accept) be cheaper to work around a patent. In such cases the
          patent will be worth less. In other words what I am saying is
          that the value of a twenty year monopoly varies depending on a
          number of factors, one of which is the typical cost of research
          in the field. Setting arbitrary thresholds based on research
          costs would effectively discriminate against individuals and
          smaller companies in favour of the bigger companies who will
          always spend more on research. And who would decide how much
          money needed to be spent to make a particular invention? (I
          presume you would not be content to determine the fate of a
          patent application on the basis of how much was actually
          Probably the most important problem here is communication
          between non-programmers (lawyers, patent officials and so on)
          and programmers. It is probably very difficult to convince the
          former about what kind of things are easy for programmers, such
          as having ideas, and what kind of things are difficult and time
          I cannot speak for lawyers, but I can assure you that many
          Patent Examiners are programmers themselves. In my group, all
          the Patent Examiners who deal with software applications either
          write computer programs in their spare time or have been
          employed as programmers before they became patent examiners.
          They usually have a pretty good idea whether something would
          have been easy or time consuming for a programmer. However,
          they might express the communication problem the other way
          around - it's very difficult to persuade programmers that just
          because an invention is "easy", does not make it any less
Why not raise the "inventive step" standard?

   This dialogue confirms what everybody in the patent trade knows: the
   criterion of "inventive step" as it stands is not designed to sort out
   trivial patents.
   It is very hard to prove that even the most trivial idea does not
   contain an inventive step. The only way to show this currently at the
   European Patent Office is to prove that the idea can be obtained by
   simply combining the teaching of two known documents that the "person
   skilled in the art" would normally consult.
   In the case of software patents, the person skilled in the arts rarely
   even consults documents. New programming problems occur all the time,
   and "inventing" a solution to them is the normal way to go. Most such
   solutions are not even worth being published in any inforomation
   science journal that an examiner might consult for testing their
   Certainly there are here and there some really difficult mathematical
   or informatical tasks. Certain mathematical proofs took hundreds of
   years to find. So, shouldn't we try to raise the inventivity standard,
   so that those really great achievements can be rewarded by some kind
   of monopoly right?
   Even if lawmakers wanted to radically reform the existing patent
   system and raise the "inventive step" standard, they would encounter
   great difficulties. How would they define "height of invention"
   (Erfindundhöhe), as it is still sometimes called in old-fashioned
   German patent jargon? "At least 20 inches above the state of the art"?
   "At least 20 twists of the brain beyond the state of the art"?
   A social game could help out: let the patent applicant first
   publish only his problem and provide incentives for the public to
   submit solutions until a certain deadline. All these solutions are
   then considered to be prior art. This could really work, but it is a
   very radical proposal that is even further from being accepted by
   patent lawyers than the abolition of software patents, which are still
   controversely disputed and not yet established in all countries. We
   must not forget that the patent system is regulated in detail by
   [40]international treaties and therefore almost unreformable. Moreover
   the forces that control the patent system are conservative and will
   find good legal arguments to oppose any reform measure that could lead
   to the granting of less patents. There is an interest in making the
   patent system look good, but not in making it perform well.
The constituting regulative: technical character

   Traditionally there has been one other criterion that has helped to
   sort out trivial ideas: the criterion of technical (aka physical,
   material, empirical) character. At least in Europe and Japan, patent
   offices and patent courts still pay lipservice to this criterion. We
   have concisely formulated this criterion in our proposed
   [41]"Regulation about the invention concept of the European patent
   system and its interpretation with regard to computer programs". This
   shows that the mind-matter borderline can be resharpened to provide a
   clear criterion, which excludes those "post-industrial" innovations
   that are based only on abstract calculus and do not require
   experimentation. Finding a new causal relation between natural forces
   and a physical effect is usually much more difficult than finding a
   new mathematical relation.
   Patents on untechnical innovations pave the way to an abyss of total
   triviality. They create a whole range of detrimental effects on the
   patent system. They do not only break the requirement of inventivity.
   They also lead to the proliferation of "function claims", i.e. claiming
   of achieved "technical effects". This means that problems and not
   solutions are claimed. Since no new causal chain between natural
   forces and a transformation of matter is involved, it becomes
   difficult to delimit the "invention". If it lies in a purely abstract
   mathematical area, it cannot be claimed because that would mean laying
   claims to pure thinking. If however a "technical effect" of
   computation is claimed, there is no inventivity in the claim, since
   everybody knows that a computer can do it. The only difficulty lies in
   knowing how to tell the computer to do it, and that is routinely left
   to the thousands of creative programmers, who, if allowed to do so,
   could devise thousands of different creative solutions, all of which
   produce the claimed "technical effect".
   Thus the introduction of software patents has not only killed the
   requirement of technicity but also that of reproducibility. It has
   removed traditional restrictions on the permissibility of functional
   claims and thus overturned the balance of the patent system, leaving
   it behind in a state of disorder, inconsistency and moral bankruptcy.
Further Reading

     * [42]Report on Software Patents by Joaquin Seoane (professor of the
       Universidad Politécnica de Madrid) and Ramon Garcia Fernandez
       (Contains a long chapter on the triviality problem. Quotes patent
       lawyers who are encouraging their customers to patent anything
       that seems useful and forget about the idea that patents are about
       inventions. They are not. Especially in software, you have to
       forget that old prejudice quickly, if you want to play the patent
     * [43]Bronwyn H. Hall & Marie Ham: The Patent Paradox Revisited
       (Research work done at Univ. of California, Berkely, published
       1999 by National Bureau of Economic Research Inc. Finds that the
       surge in patents in the semiconductor industry in the 1980-90s
       does not reflect a surge in R&D activity. Most of the patents are
       trivial software innovations and were just stockpiled as weapons
       in a kind of arms race.)
     * [44]Lester C. Thurow 1997: Needed: A New System of Intellectual
       Property Rights (Squeezing today's innovations into yesterday's
       system simply won't work)
     * [45]The models are broken, the models are broken (shows how
       patenting of software clashes with some of the underlying
       assumptions of the patent system and how this will inevitably
       challenge the foundations of the patent system, as more and more
       problems are solved by purely mathematical means.)
     * [46]On the Patent Examination of Computer Programs (This article
       is to clarify some of the problems and inconsistencies, with which
       the author as a former software developer and current patent
       examiner at the German Patent Office is confronted when examining
       computer program related patent applications.)
     * [47]Gregory Aharonian: The Patent Examination System is
       Intellectually Corrupt (The author's indignation with the patent
       examination process leads him to sharply analyse many present-day
       problems. Whether these problems can, as Aharonian suggests, be
       solved by a mere improvement of the examination process, seems
       questionable. The indignation may be a result of wrong
       expectations due to the author's firm belief in the universal
       applicability of the patent system.)
     * [48]Stimulating Information Innovation: "Third Paradigm" or
       "Nobody's Land of Intellectual Property"? (Some radical ideas on
       alternatives to the patent system, including social games of
       inventivity competition)

  39. http://www.aful.org/mailman/listinfo/patents
  40. http://swpat.ffii.org/stidi/trips/indexen.html
  41. http://swpat.ffii.org/stidi/eurili/indexen.html
  42. http://www.dit.upm.es/~joaquin/report_en.pdf
  43. http://swpat.ffii.org/vreji/papri/nber-hallham99/indexen.html
  44. http://swpat.ffii.org/vreji/papri/hbr-thurow97/indexen.html
  45. http://swpat.ffii.org/vreji/papri/uplr-newell86/indexen.html
  46. http://swpat.ffii.org/vreji/papri/patpruef/indexen.html
  47. http://www.bustpatents.com/corrupt.htm
  48. http://swpat.ffii.org/stidi/basti/indexen.html