Following up on the "IPR in ICT Standardisation" Workshop two weeks ago in Brussels, FSFE president Georg Greve analysed the conflicts between patents and standards. The resulting is paper about the most harmful effects of patents on standards, the effectiveness of current remedies, and potential future remedies. Read the whole article under: http://fsfeurope.org/projects/os/ps.
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Matthias Kirschner wrote:
Read the whole article under: http://fsfeurope.org/projects/os/ps.
I have a couple of questions and points which the article doesn't seem to answer:
"[..] (F)RAND terms are discriminating against Free Software. Even RAND terms linked to zero royalties, [..] often exhibit the same problems because they do not permit sublicensing."
It doesn't seem to make any argument why sub-licensing would be desirable and/or necessary for free software.
"[..] Free Software, which is estimated to reach 32% of all IT services and 4% of European GDP by 2010."
First, the link doesn't support that claim - it says "could" in the sense of some upper-bound, not a prediction of the size of the market. Second, they count anything feasibly related - those figures don't relate directly to free software. These figures really are a bit outlandish - EU GDP is some $16 trillion, and 4% of that is $64 billion.
"Such a case reverts the initial idea of patenting: The technology is valuable because it is patented, not patented because it is valuable."
I think this is pretty weak. You don't patent things because they are "valuable", you patent them to make them valuable. That's the whole point of IPR as far as I can see.
"From the perspective of most SMEs, 100.000 EUR patent research costs are prohibitively expensive"
So they just don't do it ;) There are plenty of SMEs that are patent holders, and this is really just an argument to reduce the cost of obtaining a patent, which isn't really what we want.
The conclusions of the article seem relatively reasonable, although I'm slightly worried by the introduction of "Interop trumps patent" as being relevant to the community patent debate. I don't think that's a deal we want to strike.
Cheers,
Alex.
On Tue, 2008-12-02 at 17:19 +0000, Alex Hudson wrote:
"Such a case reverts the initial idea of patenting: The technology is valuable because it is patented, not patented because it is valuable."I think this is pretty weak. You don't patent things because they are "valuable", you patent them to make them valuable. That's the whole point of IPR as far as I can see.
I disagree. You patent things to make them exploitable when there is a need of an initial investment in research. Patents, in theory, should protect investments in realizing valuable ideas by granting a short term monopoly.
The fact that some patents *create* value is *the* problem.
Anything that does not require an important initial investment should not be granted a patent, because it does not deserve it.
"From the perspective of most SMEs, 100.000 EUR patent research costs are prohibitively expensive"So they just don't do it ;) There are plenty of SMEs that are patent holders, and this is really just an argument to reduce the cost of obtaining a patent, which isn't really what we want.
It would level a bit the field by allowing more SMEs to get patents, but certainly will not change any of the problems of the current system.
Simo.
simo wrote:
On Tue, 2008-12-02 at 17:19 +0000, Alex Hudson wrote:
You don't patent things because they are "valuable", you patent them to make them valuable. That's the whole point of IPR as far as I can see.
I disagree. You patent things to make them exploitable when there is a need of an initial investment in research. Patents, in theory, should protect investments in realizing valuable ideas by granting a short term monopoly.
Sure, but there is no guarantee research leads to a patentable product. The investment is effectively risk capital, and the patent balances that. The investment could be lost.
Anything that does not require an important initial investment should not be granted a patent, because it does not deserve it.
I think that's a different model. If you care about the value created, then you fund the research up-front (somehow) and remove the risk.
So they just don't do it ;) There are plenty of SMEs that are patent holders, and this is really just an argument to reduce the cost of obtaining a patent, which isn't really what we want.
It would level a bit the field by allowing more SMEs to get patents, but certainly will not change any of the problems of the current system
Absolutely.
Cheers,
Alex.
On Tue, 2008-12-02 at 18:17 +0000, Alex Hudson wrote:
simo wrote:
On Tue, 2008-12-02 at 17:19 +0000, Alex Hudson wrote:
You don't patent things because they are "valuable", you patent them to make them valuable. That's the whole point of IPR as far as I can see.
I disagree. You patent things to make them exploitable when there is a need of an initial investment in research. Patents, in theory, should protect investments in realizing valuable ideas by granting a short term monopoly.
Sure, but there is no guarantee research leads to a patentable product. The investment is effectively risk capital, and the patent balances that. The investment could be lost.
If the research fails, you get nothing patentable anyway, or you get something that even patent has no value, so where is your point ?
Anything that does not require an important initial investment should not be granted a patent, because it does not deserve it.
I think that's a different model. If you care about the value created, then you fund the research up-front (somehow) and remove the risk.
No I think you misunderstood what I said, and I think you may have confused investment with risk.
There is no risk in thinking, the risk exist only when you have to actually put money where your mouth is. That's why awarding a patent for researches that actually required real investment make some sense (and they still need to come up with something novel, non-obvious, etc..). But risk or investment alone do not justify granting any monopoly of course.
Simo.
From: "Alex Hudson" home@alexhudson.com
It doesn't seem to make any argument why sub-licensing would be desirable and/or necessary for free software.
Interesting, for some reason I was under the impression that sublicencing was part of the essential legal machinery of free software, it turns out the GPL 3 for instance does not use sublicencing but conveying gives a licence from the upstream creator of the work.
I think this is pretty weak. You don't patent things because they are "valuable", you patent them to make them valuable. That's the whole point of IPR as far as I can see.
Well, in theory the whole point of IPR is that those things which are not valuable (common knowledge, lacking a creative input (in copyrights) or an inventive step (patents) are in the public domain. Those things which cost money/labour to create/invent are privatized in the hope this incentivises people to invest that labour or money. If you can get the returns of that privatization without making the investment, that's a failure mode of the system, no?
So they just don't do it ;) There are plenty of SMEs that are patent holders, and this is really just an argument to reduce the cost of obtaining a patent, which isn't really what we want.
Maybe worse is better is an acceptable strategy here. As in, maybe after things become so legally dangerous because thousands of SMEs have all kinds of patents, the big companies would think twice.
--David.
David Picón Álvarez wrote:
From: "Alex Hudson" home@alexhudson.com
It doesn't seem to make any argument why sub-licensing would be desirable and/or necessary for free software.
Interesting, for some reason I was under the impression that sublicencing was part of the essential legal machinery of free software, it turns out the GPL 3 for instance does not use sublicencing but conveying gives a licence from the upstream creator of the work.
GPLv2 worked in the same way too I think (though not worded as explicitly as it is in v3). In general, I tend to think of sublicensing as being very rare - you only really need it if you're changing the license (or, at least, varying it somehow).
Well, in theory the whole point of IPR is that those things which are not valuable (common knowledge, lacking a creative input (in copyrights) or an inventive step (patents) are in the public domain. Those things which cost money/labour to create/invent are privatized in the hope this incentivises people to invest that labour or money. If you can get the returns of that privatization without making the investment, that's a failure mode of the system, no?
I wouldn't say so, in the same way that not getting any returns by making that same investment also isn't a failure mode of the system either. It's a system of risk.
Maybe worse is better is an acceptable strategy here. As in, maybe after things become so legally dangerous because thousands of SMEs have all kinds of patents, the big companies would think twice.
Potentially, but I think it probably makes things worse. The problem SMEs have isn't that they can't acquire patents, it's that they can't litigate them effectively against competitors. They would be well-placed to wave them against free software though.
Cheers,
Alex.
On Tue, 2008-12-02 at 21:42 +0000, Alex Hudson wrote:
GPLv2 worked in the same way too I think (though not worded as explicitly as it is in v3). In general, I tend to think of sublicensing as being very rare - you only really need it if you're changing the license (or, at least, varying it somehow).
Well, in theory the whole point of IPR is that those things which are not valuable (common knowledge, lacking a creative input (in copyrights) or an inventive step (patents) are in the public domain. Those things which cost money/labour to create/invent are privatized in the hope this incentivises people to invest that labour or money. If you can get the returns of that privatization without making the investment, that's a failure mode of the system, no?
I wouldn't say so, in the same way that not getting any returns by making that same investment also isn't a failure mode of the system either. It's a system of risk.
If there is no investment what are you rewarding ? A monopoly is a serious business, if there is no reason to grant one it shouldn't be granted or you simply create a distortion in the market. And we know how is always easier is for the wealthier to push a bit further.
The patent system should reward risk takers that actually made the investment, because if you don't, in the long term you will get no investments.
If you can get a monopoly whether you invest or not, it is only normal that you will shift toward getting patents where investment is not needed given that no investment == no risk.
So by allowing patents where there is no investment you just end up negating the reason d'etre of the patents themselves: to promote investment.
Simo.
simo wrote:
The patent system should reward risk takers that actually made the investment, because if you don't, in the long term you will get no investments.
I agree with that, but you can't directly link investment, risk and result. Sometimes the investment required will be low, sometime high, ditto the results. The risk is somewhat quantifiable, but again, it's an art not a science (hence actuaries).
If the investment and/or risk is too high even the result, not enough people will put the effort in. If it's too low, then the system is faulty in the other direction. It's a balance. What you try to do is get a systemic result in which the balance (overall investment versus overall "progress" - and I quote that because I think "progress==patents" is fallacious) is about right.
If you put a basic requirement on the level of investment, you don't actually improve the situation. You're just turning the risk knob up, and so people will look to offset that risk - in the same way as when companies file their accounts, suddenly there are a lot of deductions they have against tax. It makes the system more expensive, but any decent-sized company would easily be able to allocation sufficient costs to the development to beef up their apparent investment.
Cheers,
Alex.
simo simo.sorce@xsec.it wrote:
On Tue, 2008-12-02 at 21:42 +0000, Alex Hudson wrote:
[...unattribution lost?...] Those things which cost
money/labour to create/invent are privatized in the hope this incentivises people to invest that labour or money. If you can get the returns of that privatization without making the investment, that's a failure mode of the system, no?
I wouldn't say so, in the same way that not getting any returns by making that same investment also isn't a failure mode of the system either. It's a system of risk.
If there is no investment what are you rewarding ? [...] The patent system should reward risk takers that actually made the investment, because if you don't, in the long term you will get no investments.
Aren't patents claimed to reward "the true and first inventor"? (Statute of Monopolies, 1624, England)
If they currently reward *investors* rather than inventors, that is yet another illustration of the corruption and perversion of software patents.
The risk-takers are the workers and they are the ones that should be rewarded in a fair way - and that isn't done by granting them a monopoly which they are ill-placed to profit from. There should be a unambiguous blanket ban on software patents so that software workers can get on with working, without fearing submarine patents.
FSFE should make that point and make it strongly, for the sake of all workers on free software.
Regards,
On Wed, 2008-12-03 at 00:55 +0000, MJ Ray wrote:
simo simo.sorce@xsec.it wrote:
On Tue, 2008-12-02 at 21:42 +0000, Alex Hudson wrote:
[...unattribution lost?...] Those things which cost
money/labour to create/invent are privatized in the hope this incentivises people to invest that labour or money. If you can get the returns of that privatization without making the investment, that's a failure mode of the system, no?
I wouldn't say so, in the same way that not getting any returns by making that same investment also isn't a failure mode of the system either. It's a system of risk.
If there is no investment what are you rewarding ? [...] The patent system should reward risk takers that actually made the investment, because if you don't, in the long term you will get no investments.
Aren't patents claimed to reward "the true and first inventor"? (Statute of Monopolies, 1624, England)
If they currently reward *investors* rather than inventors, that is yet another illustration of the corruption and perversion of software patents.
It depends on how you define inventor, for things that are expensive to 'invent', you are either a rich inventor, or you ask an investor to fund your invention. In the latter case (the common one), you get the name on the patent and the investor (most of) the profits that come from the monopoly.
The risk-takers are the workers and they are the ones that should be rewarded in a fair way
Workers, if by that term you mean employers, are seldom risk takers.
- and that isn't done by granting them a
monopoly which they are ill-placed to profit from.
So you are against copyright too ? It's a monopoly you know ...
There should be a unambiguous blanket ban on software patents so that software workers can get on with working, without fearing submarine patents.
I am against software patents as well, but you should use better arguments imo.
FSFE should make that point and make it strongly, for the sake of all workers on free software.
FSFE made this point many times already, you can check it did.
Simo.
simo simo.sorce@xsec.it wrote:
On Wed, 2008-12-03 at 00:55 +0000, MJ Ray wrote:
Aren't patents claimed to reward "the true and first inventor"? (Statute of Monopolies, 1624, England)
Aside to another thread: I know that's old, but it appears to be the last time someone justified a patent law here and the UK Patent Office still refers to it.
[...]
The risk-takers are the workers and they are the ones that should be rewarded in a fair way
Workers, if by that term you mean employers, are seldom risk takers.
No, I mean the workers. Often that means the employees, but I don't think the patent system should be aimed at employee-employer combinations, which is how it seems at present. Independent workers are important.
- and that isn't done by granting them a
monopoly which they are ill-placed to profit from.
So you are against copyright too ? It's a monopoly you know ...
Are workers ill-placed to profit from it? Arguably still yes, but it seems a lot less clear-cut than for patents: copyright is granted for free, while patents cost hundreds of pounds in form-filing fees alone; copyright material can be exploited by almost anyone now, while patent exploitation seems to involve thousands of pounds of legal fees.
Actually, I probably am basically against copyright, but we are where we are and the Berne Treaty, the internet and free software have done a lot to make copyright fairer for workers.
There should be a unambiguous blanket ban on software patents so that software workers can get on with working, without fearing submarine patents.
I am against software patents as well, but you should use better arguments imo.
So fair trade and worker benefit are not good arguments to you? Then I leave you to make better arguments to people you understand, because I don't understand your values.
FSFE should make that point and make it strongly, for the sake of all workers on free software.
FSFE made this point many times already, you can check it did.
I'm glad to read that.
Thanks,
MJ Ray mjr@phonecoop.coop writes:
No, I mean the workers. Often that means the employees, but I don't think the patent system should be aimed at employee-employer
For software, we can't settle for anything less everyone being free to develop and distribute software commercially and non-commercially. So AFAICT, we don't have to debate this distinction.
Like the freedom to write a book: it's important that everyone has it, even if most people will never use that freedom.
On Wed, 2008-12-03 at 13:52 +0000, MJ Ray wrote:
simo simo.sorce@xsec.it wrote:
On Wed, 2008-12-03 at 00:55 +0000, MJ Ray wrote:
Aren't patents claimed to reward "the true and first inventor"? (Statute of Monopolies, 1624, England)
Aside to another thread: I know that's old, but it appears to be the last time someone justified a patent law here and the UK Patent Office still refers to it.
[...]
The risk-takers are the workers and they are the ones that should be rewarded in a fair way
Workers, if by that term you mean employers, are seldom risk takers.
No, I mean the workers. Often that means the employees, but I don't think the patent system should be aimed at employee-employer combinations, which is how it seems at present. Independent workers are important.
Ok if you had used the word Inventors that would have been clearer. Yes Inventors are risk takers usually, whether they are commercial ventures or individuals on their own.
- and that isn't done by granting them a
monopoly which they are ill-placed to profit from.
So you are against copyright too ? It's a monopoly you know ...
Are workers ill-placed to profit from it? Arguably still yes, but it seems a lot less clear-cut than for patents: copyright is granted for free, while patents cost hundreds of pounds in form-filing fees alone; copyright material can be exploited by almost anyone now, while patent exploitation seems to involve thousands of pounds of legal fees.
In this case I guess by workers you mean independent inventors/creators (patents/copyrights). Yes the patent system is extremely adverse to the poor inventor. It is one of the first myth you usually have to debunk when you talk to a patent illiterate. The myth claims that the patent will save the inventor from the evil companies that want to exploit his inventions without giving him anything back. But truth is that the *poor* independent inventor will never have the money to file a patent at all. But even if this is just a moderately poor inventor and manages to get a patent he will still be ill-equipped to defend himself both from patent trolls and from huge patent portfolio holders that have dozens of other patents and also the means to bankrupt him before he can even sell one of his inventions.
So if you meant independent inventor I am totally with you, the patent system certainly does not serve this figure, except for very marginal cases, the proverbial exceptions that confirm the rule (and this rare cases are of course always used as examples to validate the myth of the poor inventor that becomes rich thanks to a patent).
There should be a unambiguous blanket ban on software patents so that software workers can get on with working, without fearing submarine patents.
I am against software patents as well, but you should use better arguments imo.
So fair trade and worker benefit are not good arguments to you? Then I leave you to make better arguments to people you understand, because I don't understand your values.
Pragmatically it really depend who you are making your case to. It's not a matter of understanding what people know and understand of the patent system (including most of our mighty ignorant politicians) and which arguments are effective in making them get the point. My personal values really have nothing to do with the discussion.
Simo.
MJ Ray wrote:
simo simo.sorce@xsec.it wrote:
If there is no investment what are you rewarding ? [...] The patent system should reward risk takers that actually made the investment, because if you don't, in the long term you will get no investments.
Aren't patents claimed to reward "the true and first inventor"? (Statute of Monopolies, 1624, England)
Well, at that time yes - I'm not sure that really survives to this point. The economy in which we live right now is completely different to the economy of 1624, and patents are simply an economic measure. I'm not sure it's possible to argue what patent policy should be now on the basis of why they were bought in a few hundred years ago; policy has moved on an awful lot since then.
If they currently reward *investors* rather than inventors, that is yet another illustration of the corruption and perversion of software patents.
I think there are a couple of issues there. If you look at a "modern" patent, they tend to have a few inventors - say, three - and are assigned to the business who employs them. Indeed, employment law is setup such that discoveries/creations that are generated during the course of employment belong to the employer (and this is patents in general, not software patents).
In a way, this is another economic reality. In the 17th century, people tended to work for themselves an awful lot more, people were highly localised and immobile, and they traded directly in goods much more. These days, it's a rare person who does those things.
Cheers,
Alex.