That anti-patent pamphlet I mentioned

[Niall Douglas]

On 10 Dec 2002 at 11:49, Arnoud Galactus Engelfriet wrote:

> > For some reason, the legal profession has always eschewed
> > integration of ethics, quite probably because half their work in
> > side-stepping the intent of laws would evaporate. However, in my
> > opinion all law should be subject not to its letter, but to its
> > spirit and if we could change that, the world would be a much better
> > place for it.
> 
> Fine with me. But again, currently it is not illegal to do something
> that apparently violates the spirit of a law if you stay within the
> letter of the law. If you want to call violating the spirit of a law
> an illegal act, go ahead, but you will create much confusion because
> the legal people and politicians you're trying to reach will be
> looking for violations of the letter of the law.

Oh I know - mine was a general utilitarian statement of "wouldn't 
things be better if ...". It won't happen quite simply because it's 
in the best interest of the powerful to keep the status quo.

> I would say: "despite the fact that the European Patent Convention
> explicitly excludes computer software as such since 1973 and the 2000
> EPC Diplomatic Conference made it clear the EPC Contracting States did
> not want to change this. Unfortunately, the proposed Directive will
> effectively render this provision null and void."

A bit of a mouthful for an opening paragraph. I'll see what I can do 
with it whilst keeping it factually correct.

> I get the feeling that what you are trying to say is that doing
> something that goes against the original intent of the EPC is
> necessarily an illegal activity. This seems a bit strange to me, as
> lawmakers have the ability to override previous laws, don't they? If
> the EC now wants to override the provisions of the EPC, that may be a
> bad policy, but it's not a loophole. It's simply a new law.

Oh no, not all. I fully understand how reality is. It was merely an 
abstract wish.

> >  which, as I've discussed in here at length, is a set of algorithms 
> > and therefore should be totally free in order to encourage 
> > competition to produce the best implementation.
> 
> The patents do not cover the standard itself, but only
> implementations of the standard. You can copy the standard as much as
> you want (subject to copyright restrictions of course) and distribute
> information in the standard to everyone. But as soon as you start
> implementing the standard, your implementation will infringe on some
> patents. And for particular implementations there might also be
> patents which you can work around by choosing a different
> implementation.

Here is precisely the knub of where the world went wrong with 
software and patents. You use "implementation" in the way they do but 
logically it is not equivalent to "implementation" with respect to 
other patentable devices.

I was using "implementation" in its software context ie; the software 
code itself. This would equally apply to the design of the circuits 
of the hardware because as you previously pointed out, there is 
considerable scope for the dividing point between hardware and 
software in an overall system.

Now if we used this correct form of "implementation", I would 
infringe on MPEG2 patents during my implementation only if my 
software or hardware bore a striking resemblence to another existing 
implementation. This is *separate* from the algorithms.

Obviously, with some care, there can be near infinite implementations 
of identical algorithms just as there can be near infinite 
implementations of a pump. Thus, the MPEG2 patents are precisely the 
worst kind of patent much in the same way as patenting all possible 
pumps is a stupid idea.

If you don't get what I'm on about and how I'm making this 
differentiation, please see 
http://mailman.fsfeurope.org/pipermail/discussion/2002-
December/003514.html. It's effectively about the difference between 
an ideal thing and the thing itself.

> > I appreciate all that EuroLinux and the FFII have done, but could it
> > not be argued a better approach is to say why the hell was this
> > stupidity with hardware allowed in the first place? I can't see MPEG
> > patents benefiting society at all eg; MPEG2 players for Linux and
> > even MPEG2 players for Windows.
> 
> I don't understand this. Are you saying that patents on hardware
> implementations of MPEG should also not be permitted?

On the specific design of circuits and wiring yes they should be 
permitted. But the current situation where it's impossible to 
implement MPEG2 in hardware without infringing a patent indicates the 
definition of "implementation" is wrong - this is more patenting the 
"generalised solution" than specific implementation.

> > We're about to run into the same problems with MPEG4 now it's been
> > charged for. It seems to me a very stupid idea which discourages
> > interoperability and improvements in technology. In other words,
> > it's anti-quality and anti-usefulness.
> 
> The counter argument would be that without the prospect of using
> patents to get revenue from MPEG 4 implementers, the MPEG 4 drafters
> would not have made the investments to develop the standard in the
> first place. My company certainly wouldn't have.

No, you could still get patents for your specific implementation 
which if it's the best and cheapest, others will licence it from you 
and you get your money. No one else could sell a facsimile for 
example, but they could sell a similar solution.

This would encourage competition and improved quality.

> > > Most patents in general are not cash cows. 
> > 
> > Except for IBM, the pharmaceutical companies and a few others.
> 
> Even to IBM most patents are not a cash cow. A small number of their
> patents bring in a lot of money, but most of them don't bring in any
> money.

I think the figure IBM makes is around 1 billion a year. This does 
not include I suspect the vastly larger income from cross-licensing 
and I wouldn't be surprised if the total net benefit would exceed 10 
billion annually.

There are also plenty of non-monetary benefits such as improving the 
skill set of your employees, garnering ideas for new inventions etc. 
I reckon it's a cash cow for them.

Cheers,
Niall