This isn't validation - but it may be corruption.

Posted Mar 20, 2009 12:47 UTC (Fri) by pboddie (guest, #50784)
In reply to: This isn't validation - but it may be corruption. by k3ninho
Parent article: FFII: EPO seeks to validate software patents without the European Parliament

Wake up and live in the real business world:

You can drop the condescension. There's no shortage of remarks that can be made about the "business world" if you think any discussion is best served by attempting to ridicule the experiences of other people.

patents are tools to control markets and therefore are part of life.

Patents are artificial tools to control markets, and although people have to deal with them as "part of life", they by no means have a guaranteed position in all markets, nor should their introduction into new markets be considered as inevitable or justifiable.

One response of patent professionals in the UK is to welcome this referral because it will help bring certainty to UK patent practice, insofar as it should help identify boundaries to patent protection that have a fair protection for the patent holder and a reasonable degree of legal certainty for third parties.

Sure, I can understand that people want clarity. But where "patent professionals" can live with a decision that goes either way with regard to software patents, the majority of people who actually do the work in the software industry cannot live with the outcome where software is patentable.

Additionally, the lack of accountability of the EPO is still an issue to the point that the creation of a democratically-accountable central place for issuing EU patents, revoking EU patents and litigating infringement would be welcomed by patent attorneys across the EU.

This surprises me somewhat, since the unaccountability of the EPO has been exploited quite effectively by advocates of extended patentability, but maybe most patent attorneys don't really care about increasing the scope of what can be patented, or maybe they care more about only settling such matters once in a single place. If so, they need to employ more credible spokespeople who actually represent the interests of the majority of their profession's members.

However, for all the talk of harmonisation and bringing the EPO within the (somewhat deficient) democratic structures of the EU, the related proposals always seem to involve a bunch of amendments to (or reinterpretations of) accepted practice which would effectively extend patentability to software and other things, conveniently meeting the lobbying objectives of certain interests with large patent portfolios.

Hence the reference to corruption, because even if a democratic framework could be applied to the European patent regime, it's likely (given previous experience) that the legislation written to achieve such a thing would be tainted by measures whispered into the ears of friendly figures at the Commission who believe the "patents equal innovation" nonsense. And then there would need to be an uphill struggle to amend or overturn such measures, all in order to make the "letter of the law" reflect the presumed intent.

And one is left with the impression that in order to head off a bunch of opportunists, people in the software industry have to waste their own time and money campaigning against something which shouldn't even be under consideration in the first place.

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This isn't validation - but it may be corruption.

Posted Mar 20, 2009 17:04 UTC (Fri) by k3ninho (subscriber, #50375) [Link] (3 responses)

Insofar as patents offer new start-ups a way to keep innovation actually happening, they have to be accepted as a good way to artificially control markets. Imagine the situation where a new start-up had no legal recourse to stop an incumbent from stealing their idea and running them out of the game by force of pre-existing wealth? Where would potentially game-changing developments be used -- except for being hidden away while competition dies and techniological progress stagnates?

>But where "patent professionals" can live with a decision that goes either way with regard to software patents, the majority of people who actually do the work in the software industry cannot live with the outcome where software is patentable.

Contrary to your suggestion, patent attorneys are parasites who need their supporting businesses to pay them to do the job: if it's bad for software people, then it's bad for attorneys working on software patents (and to be clear, I say that patents for computer programs are granted but I don't believe that patents should be enforceable for computer programs).

I am as skeptical as you about the emergence of a unfettered Europe-wide patent system.

This isn't validation - but it may be corruption.

Posted Mar 20, 2009 17:28 UTC (Fri) by pboddie (guest, #50784) [Link] (2 responses)

Insofar as patents offer new start-ups a way to keep innovation actually happening, they have to be accepted as a good way to artificially control markets. Imagine the situation where a new start-up had no legal recourse to stop an incumbent from stealing their idea and running them out of the game by force of pre-existing wealth? Where would potentially game-changing developments be used -- except for being hidden away while competition dies and techniological progress stagnates?

Can you point to any "game-changing developments" employed by start-up companies that were successfully protected by patents? Most of the time, the hard work involved with such a development is in the execution, not thinking up the idea. And ideas shouldn't be patentable, anyway.

Contrary to your suggestion, patent attorneys are parasites who need their supporting businesses to pay them to do the job: if it's bad for software people, then it's bad for attorneys working on software patents (and to be clear, I say that patents for computer programs are granted but I don't believe that patents should be enforceable for computer programs).

I thought I was giving quite a clear impression that I actually regard the patent business as parasitic. However, if someone told patent attorneys (and friends) that software isn't patentable, they would probably still find ways of dressing it up to look patentable, so although this might protect software developers, there might still be a threat to solution developers, and the money would presumably keep coming in from anyone willing to pay for such patents.

And there are plenty of other domains besides software where the subject matter shouldn't be patentable, either. For software developers, if someone ruins the profession in order to make some money for themselves, it's quite inconvenient to find another line of work. For the patent business, one wonders how inconvenient it is to switch attention to another industry once one has stripped the carcass of the last one that needed "protection" for its innovations.

This isn't validation - but it may be corruption.

Posted Mar 21, 2009 16:19 UTC (Sat) by k3ninho (subscriber, #50375) [Link] (1 responses)

> Can you point to any "game-changing developments" employed by start-up companies that were successfully protected by patents? Most of the time, the hard work involved with such a development is in the execution, not thinking up the idea. And ideas shouldn't be patentable, anyway.

You've got confused. The patent allows you to stop a competitor from exploiting your development, and thus provides protection from a bigger competitor muscling you out of the market. Examples of game-changing developments whose patents helped their start-up companies become successes include Akamai's content delivery and Google's PageRank (and extensions to Google searches like the 'define:' search method). I cite these examples well aware that growing a business is far more than having a patent -- but having a patent stops the business you have worked to grow from being undercut by competitors who can afford loss-leaders.

This isn't validation - but it may be corruption.

Posted Mar 22, 2009 1:47 UTC (Sun) by pboddie (guest, #50784) [Link]

You've got confused. The patent allows you to stop a competitor from exploiting your development, and thus provides protection from a bigger competitor muscling you out of the market.

I'm aware of the theory, but what's to stop the bigger competitor from threatening you with their patent portfolio, anyway? And PageRank looks like a prime example of something which shouldn't be patentable, although it's interesting to note the patent's origins, suggesting some reasons as to why the subject matter isn't a trade secret, like a lot of other Google technology.