<meta http-equiv="Content-Type" content="text/plain; charset=utf-8">

#Eso: FFII/Eurolinux Message to the Conference

#oaW: Short Biography of Hartmut Pilch

#ioW: Registration Form Data

#erN: Speaker's Note

#CRj: OECD IPR Project

#uWW: Introduction to OECD activities in this area

#rre: OECD has been working on a project on %(q:IPR, innovation and economic
performance) since 2002 under supervision of Dominic Guellec and
Catalina Martinez.  Around this project a conference was organised in
August 2003 in Paris.

#Wrm: OECD IPR Conference 2003/08/28-9

#ewp: overview webpage

#Aed: Agenda

#fnm: Draft Version of 2003/07/23

#WwW: Participation in the conference will be by invitation only.  About 100
participants are expected.  Most will come from patent offices and
patent related professions, some from various universitarian
disciplines, from the business world and from non-governmental
organisations.

#Wta: Hartmut Pilch will take part in the discussion on %(q:IPR for software
and services) that will take place on the second day of the
conference, 29th of August. The focus of the discussion will be on the
economic aspects of patenting software and services, such as the
effect of patents on diffusion and further innovation in software and
whether open source software has changed the economics of software and
IPRs. Due to the number of participants all interventions will be
limited to 15 minutes.

#ieP: The conference will provide an opportunity to conduct discussions
among policy makers, patent officials, business representatives and
economists from various OECD countries. Oher participants to the
conference include Mr Gurry (Assistant Director General, chief for
patents, WIPO), Dr Arai (former JPO Commissionner, now President of
the IP Commission of the Japanese Prime Minister),  Prof. Desantes
(vice-president of the EPO), Mr. Thompson (US FTC Commissioner), Mr.
Sueur (head of patent department of Air Liquide and IP Commission of
French Employers Confederation (MEDEF)) etc.

#tcg: In his 15 minutes of speaking time, Hartmut Pilch might try to make
the following message understood:

#gnf: 160,000 signatories and 2000 companies are saying NO to software
patents.

#rtW: These 160,000 are not against Intellectual Property Rights, but rather
they believe that, in the field of software, intellectual property is
protected by copyright, whereas patents represent a form of piracy. 
Piracy against the intellectual property of software companies as much
as against the public domain.

#iwW: There is a consensus against patents among software developpers and
businessmen, which encompasses most players in the opensource field as
well as in the proprietary field.

#cne: The software industry must not be confused with the patent industry. 
Some large software and hardware companies and big associations seem
to be asking for software patents, but even there, in many cases these
are being hijacked by their patent departments.

#Wno: 80% of software salesmen are against software patents.  80% of patent
salesmen are in favor of software patents.

#iof: So far, many people in the software business in Europe have had very
little experience with patents.   Some even confuse patents with
copyright.  Once more people actually start reading patent claims, the
animosity against software patents may rise from 80% to 100%.

#mft: FFII has created a %(db:large database of European Software Patents). 
We have exhibited some of these patents in a %(hg:horror gallery). 
Among the exhibited specimens are %(mp:patents on MP3), which have
been awarded prizes by the European Commission and are generally
considered to relate to %(q:real inventions).  The problem is that
even real innovative achievements, when formulated as patent claims,
tend to become broad and trivial.  This is because software is logic,
and logic is built of many small steps of reasoning, which have to be
claimed individually if there are to be patents in this field.

#let: We have been looking for the %(q:good software patent).  We have
called our database users to %(me:evaluate patents on two scales):
%(ol|tech = technicity = concreteness and physical substance and|deal
= the deal that society makes in granting this patent.)  It was found
that nobody was able to report a single %(q:good software patent) (low
%(q:tech) and high %(q:deal) score) from the EPO database.  The
European Commission and other proponents of software patents have
also, in spite our our relentless urging, not been able to report a
single example of what they would consider to be socially desirable
patent claims in the field of software.

#stw: The success rate of the patent system in the field of software is near
0%.

#eae: The proponents of the EU Directive seem to know this.  They have
chosen a the strategy of the %(q:wolf in the sheep's coat), trying to
appear as if they wanted to restrict patentability to technical
inventions.  Yet, as we have shown, the Directive's concept of
%(q:technical contribution) is empty.  %(ao:Under the proposed
directive, Amazon One Click Shopping would without doubt be a
patentable invention.)

#yWW: This is a highly dangerous policy, not only for the software industry,
but also for the patent industry.

#met: A system with zero success rate will not survive in the long run.

#ecf: Even if we mix software together with pharmaceuticals, chemistry,
mechanics and all other fields and calculate an overall success rate,
this rate will be dragged down significantly if software patents are
allowed.

#ety: Behind the software patent problem is a more fundamental one:
tolerance toward patenting of logic, often expressed in the form of
function claims.  This began in the 1980s.  When the German Federal
Court approved the %(ba:ABS patent in 1980), it simultaneously gave
green light to function claims. There are many trivial mechanical
patents, and if you investigate these patents closely, you will find
that they are characterised by function claims.  They teach only an
abstract idea, a philosophy of how something could be done, but no new
insights about how forces of nature can be harnessed.

#srn: The field where the patent system has been a relative success is the
area where engineers use forces of nature to achieve a surprising
effect, i.e. go beyond what known models allow a desktop researcher to
predict.

#rey: Patents in chemistry and pharmacy are usually of this type, even
today.  That's why it is normally not easy to obtain such a chemical
or pharmaceutical patent.

#eio: FFII/Eurolinux have been preaching the concept of %(q:technical
invention) as %(q:teaching of cause-effect relation in the use of
controllable forces of nature).  The European Parliament's Cultural
Affairs Commission has also majoritarily voted for this approach.  
But the patent establishment is not happy with this approach.  They
call it %(q:outdated), because they take it for granted that anything
%(q:modern) must be patentable.  They want the best of both worlds:
light-weight innovation covered by heavy-weight monopolies, algorithm
patents presented in the verbal clothing of the %(q:technical
invention).

#irc: This double game is highly risky.  It brings the European Patent
System onto a track of permanent and inevitable malperformance.

#rWw: In order to survive in the long run, the patent system needs to
perform.  It needs to achieve a 90% score on the following two
benchmarks:

#gWv: ratio of granted patents which stand the test of novelty in court

#cij: When it comes to logic patents, patent offices regularly fail to
identify the prior art.  The success ratio is not zero, but certainly
not above 50%%

#Wii: ratio of granted patents which represent real investments

#Wat: Here the success ratio is near zero.  All software patents claims
which I have seen represent thoughts which are the result of at best a
few hours of thinking.

#hlh: We demand that the patent system should be given a deadline.  It must
score more than 90% on the two above benchmarks.

#cfb: In our document %(DOC) you may find further performance requirements.

#t0e: A species that can not adapt to performance requirements has to
disappear sooner or later.  This is true even for the patent system,
which in the past has rarely been subjected to any performance
requirements.

#epd: The patent system is not irreplacable.  It has a rival that performs
better, at least in some fields: copyright.  And we propose to extend
copyright to all logical creations, be they materialised as books,
diskettes or electronic circuits.

#hWx: Some proponents of universal patentability say that harnessing forces
of nature, has become a marginal activity in today's knowledge
economy.  They may be right:  The reasons for maintaining the patent
system are becoming more and more marginal, compared to the grief that
today's over-extended patent system is causing.

#osW: There may be a need for an integration of all IPR systems into one
universal system.  But this is more likely to succede on the basis of
copyright.  The patent system can only secure its place as a
specialised system.  In the words of the %(dp:Dispositionsprogramm
decsion):

#Sai: However in all cases the plan-conformant utilisation of controllable
forces of nature has been named as an essential precondition for
asserting the technical character of an invention.  As shown above,
the inclusion of human mental forces as such into the realm of the
forces of nature, on whose utilisation in creating an innovation the
technical character of that innovation is founded, would lead to the
consequence that virtually all results of human mental activity, as
far as they constitute an instruction for plan-conformant action and
are causally overseeable, would have to be attributed a technical
meaning.  In doing so, we would however de facto give up the concept
of the technical invention and extend the patent system to a vast
field of achievements of the human mind whose essence and limits can
neither be recognized nor overseen.

#Dnu: The concept of technical character seems to be the only usable
criterion for delimiting inventions against other human mental
achievements, for which patent protection is neither intended nor
appropriate.  If we gave up this delimitation, there would for example
no longer be a secure possibility of distinguishing patentable
achievements from achievements, for which the legislator has provided
other means of protection, especially copyright protection.  The
system of German industrial property and copyright protection is
however founded upon the basic assumption that for specific kinds of
mental achievements different specially adapted protection regulations
are in force, and that overlappings between these different protection
rights need to be excluded as far as possible.  The patent system is
also not conceived as a reception basin, in which all otherwise not
legally privileged mental achievements should find protection.  It was
on the contrary conceived as a special law for the protection of a
delimited sphere of mental achievements, namely the technical ones,
and it has always been understood and applied in this way.

#Ene: Any attempt to attain the protection of mental achievements by means
of extending the limits of the technical invention -- and thereby in
fact giving up this concept -- leads onto a forbidden path.  We must
therefore insist that a pure rule of organisation and calculation,
whose sole relation to the realm of technology consists in its
usability for the normal operation of a known computer, does not
deserve patent protection.  Whether it can be awarded protection under
some other regime, e.g. copyright or competition law, is outside the
scope of our discussion.

#ymt: These insights have in no way lost any of their validity in 30 years. 
While the details of technology change, the basic philosophical
categories of the Federal Court of Justice's argumentation have not
changed and, if anything, the balance has shifted further in disfavor
of software patentability.  To quote Gert Kolle's %(gk:famous comment)
on the Dispositionsprogramm Decision of 1977:

#Wmr: Automated Data Processing has today become an indispensable auxiliary
tool in all domains of human society and will remain so in the future.
 It is ubiquitous.  ... Its instrumental meaning, its auxiliary and
ancillary function distinguish ADP from the ... individual fields of
technology and liken it to such areas as enterprise administration,
whose work results and methods ... are needed by all enterprises and
for which therefore prima facie a need to assure free availability is
indicated.

#Wss: Fritz Machlup %(fm:wrote) that the introduction of the patent system
was %(q:a victory of the lawyers and protectionists against the
economists).  If software patents are established in Europe this year,
that could be characterised as a %(q:victory of the patent industry
against the software industry).  A Pyrrhean victory, I suspect.  It
may not take long before we witness a %(q:victory of the engineers and
economists against the patent dogmaticians).

#nau: The coalition of engineers and economists is already taking shape.  I
hope that in this round at OECD we will mercilessly benchmark the
social utility of the patent system.  The civil society and the
governments will form the much-called-for %(q:patent observatory) one
way or other, and we will not be content with observing.  We will
define benchmarks which any IP system must reach and a deadline for
them to be reached by the patent system.  The patent system needs to
obtain its ISO 14000 (or OECD 14000?) homologation.  As long as the
patent system has not qualified under ISO/OECD, further efforts at
international codification, such as e.g. the Substantive Patent Law
Treaty, must be put on halt.  At a certain point, the TRIPs treaty
must be revised.  If, as is to be expected, no progess is made, the
patent system must be discarded, like an old piece of clothing.  In an
age of austerity and harsh competition there can not be any political
tolerance for outlived systems that drain our economy.  And it is
clear that any score below 90% on the two minimal requirements
formulated here must be a knockout criterion for any future IPR
system.

#oaW2: Hartmut Pilch, born in 1963, M.A. in Chinese and Japanese philology
and linguistics, student of various other disciplines, has earned his
living by simultaneous interpreting, mainly between Japanese, Chinese,
German and English during oral hearings at the European Patent Office
in Munich and other language services and by programming, especially
in the field of multilinguisation of Unix/Linux-based computing
environments.  Co-founder of the FFII in 1998 and Eurolinux Alliance
in 1999, chief editor of http://swpat.ffii.org, a comprehensive web
documentation of the European software patentability debate.

#vWt: I do not want to receive news about other events and publications
outside the scope of the communication with OECD people into which I
am opting in myself.

#rni: presentation

#Won: possibly with my own laptop or with a PDF file on a diskette

# Local Variables: ;
# coding: utf-8 ;
# srcfile: /usr/share/emacs/site-lisp/phm/sys/mlht.el ;
# mailto: mlhtimport@ffii.org ;
# login: phm ;
# passwd: YYYYY ;
# feature: swpatdir ;
# dok: swpoecd038 ;
# txtlang: en ;
# multlin: t ;
# End: ;