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Warum Swpat so trivial sind
- To: swpat@ffii.org
- Subject: Warum Swpat so trivial sind
- From: PILCH Hartmut <phm@a2e.de>
- Date: Mon, 25 Dec 2000 18:34:20 +0100 (CET)
- cc: debate@fitug.de
- Comment: This message comes from the debate mailing list.
- Sender: owner-debate@fitug.de
Unter
http://swpat.ffii.org/stidi/frili/
findet sich hierzu ein neu ueberarbeiteter Artikel von mir.
http://swpat.ffii.org/stidi/frili/indexen.html
[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:
Ferndandez:
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.
Probert:
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
spent.)
Fernandez:
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
consuming.
Probert:
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
patentable.
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
novelty.
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
game.)
* [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)
_________________________________________________________________
References
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