Seegras Logbook

Es scheint als ob es zu dem Thema keinen griffigen Titel gibt, es sei denn so ein halbseitiges Untertitel-Ding, welches im 18Jh beliebt war:

“Closed Data, oder wie die Öffentlichkeit dem Staat Forschung und Datenerhebhung finanziert, und wie dieser uns für die Resultate nochmals bezahlen lässt; oder wie er die Daten an Dritte verkauft die sie dann wiederum an uns verkaufen”

Na, immerhin, damit ist gleich gesagt um was es geht.

Wir Bürger eines Staates finanzieren eine ganze Menge wissenschaftliche Forschung über die Steuern, und selbst da wo der Hintergrund nicht wissenschaftlich ist, sondern ganz einfach begründet in Verwaltungstechnischer Notwendigkeit — Zensus, Vermessung, Steuern, Rechteausübung, Justiz — fallen Daten an die wissenschaftlich interessant sind.

Strassen-, Zonen-, und Katasterpläne, Höhenmodelle, hydrographische Modelle, demographische Daten, meteorologische Daten, kriminalstatistische Daten und so weiter. Und dadurch dass diese Vorgänge schon seit längerem laufen, auch historische Daten. Für alle diese Daten haben wir bereits einmal bezahlt, in dem wir ein Bundesamt oder eine Kantons- oder Stadtverwaltung damit betraut haben, und es dafür mit Steuern bezahlen.

Bildungs- und medizinische Einrichtungen produzieren nicht nur Daten, sondern forschen auch wissenschaftlich in sämtlichen Bereichen. Auch solche Institutionen werden aktiv vom Steuerzahler unterhalten. Der Forscher wird bezahlt, dafür dass er für sein Institut, und schlussendlich für die Allgemeinheit Forschung betreibt.

Ein kleiner Teil dieser Daten sind Datenschutztechnisch relevant: Daten die sich auf lebende Personen beziehen: Steuererklärungen, medizinische Verläufe, etc. Bei diesen ist der Halter zu Geheimhaltung verpflichtet, so dass bei allfälliger Veröffentlichung oder Weitergabe nicht auf die Person geschlossen werden kann. Diese Daten haben aber ebenfalls wissenschaftlichen Wert, wenn sie in passend anonymisierter Form vorliegen, z.b. um Gesundheitsrisiken statistisch auswerten zu können.

Damit ist eigentlich klar, dass hochauflösende Karten zu jeglichem Thema, anonymisierte Personenbezogene Daten, Umweltdaten jeglicher Art, und wisschenschaftliche Forschungsergebnisse der Allgemeinheit gehören.

Möchte der Bürger nun aber Zugriff auf diese Daten, so stellen sich ihm plötzlich Hürden in den Weg:

• Historisch gewachsene Bürokratie. Daten müssen manchmal ausgewertet (z.b. zusammengestellt, anonymisiert, katalogisiert) werden bevor sie veröffentlicht werden können, und historisch gesehen war die Veröffentlichung selbst mit nicht geringen Kosten für Druck, Kopie oder Sendung verbunden. Dies hat dazu geführt dass Institutionen ihre Daten als prinzipiell “intern” angesehen haben, und jeden der zugreifen wollte als Bittsteller, welcher bitte zuerst warten und dann die Veröffentlichungskosten tragen sollte.
• Finanzieller Druck. Institutionen, seien es Ämter oder Forschungseinrichtungen, stehen unter einem finanziellen Druck von oben. Die Betrieber möchten möglichst wenig Geld ausgeben, und so erscheint es am einfachsten sich nicht nur die externen Kosten der Veröffentlichung bezahlen zu lassen, sondern da auch gleich Einnahmen zu generieren. Sobald die Publikationskosten gegen Null tendieren, was seit Grössenordnung 1995 mit dem Internet der Fall ist, dann sieht man plötzlich wie eine Institution Geld verlangt, für etwas was schon lange bezahlt ist. Weshalb genau kosten Schweizer Karten 1:25’000 in elektronischer Form SFR 14 pro “Blatt” [1]?
• Propaganda. Der Schritt von “für die Publikation müssen wir die Unkosten der Veröffentlichung selber erstattet haben” zu “für die Publikation wollen wir die Unkosten der ganzen Forschung erstattet haben” ist ein kleiner, aber sehr relevanter. Plötzlich sind die Daten nicht mehr der Öffentlichkeit, sondern zum Rechtsgut derjenigen geworden die sie erstellt haben (auch wenn die Öffentlichkeit sie dafür eigentlich bezahlt hat). Es werden Copyright-Vermerke draufgeknallt, und man versucht die ganze Verwertungskette zu kontrollieren. Gefördert wurde dieses Denken durch die wachsende Propaganda seitens privater Rechteverwerter seit den 1980er Jahren, die es auch geschafft haben, das Urheberrecht seither nicht weniger als X mal zu verschärfen — jedesmal auf Kosten der Öffentlichkeit. Auch hier wieder als Beispiel die Swisstopo, respektive deren Lizenzen [2].
• Rentensuche. Noch wildere Blüten betreibt das Geschäft mit den Öffentlich finanzierten Daten im akademischen Bereich. Hier haben sich einerseits wissenschaftliche Verlage etabliert, die die Aufmerksamkeit und Reputation Ihrer Leser an potentielle Autoren verkaufen, welche dann nicht nur die Publikationskosten in einem Journal bezahlen, sondern auch noch Reviews der Arbeiten anderer Autoren gratis durchführen damit schlussendlich die Verlage das Journal den Bildungseinrichtungen zu horrenden Abonnementspreisen wieder zur Verfügung stellen können. Eine komplett parasitäre Einrichtung welche eigentlich nur via Bildungsbudgets von der Öffentlichkeit eine Rente bezieht.
• Futterneid. Die Daten die die eine Institution oder der eine Forscher hat, die sollen andere entweder nicht haben, oder nicht benutzen können ohne dafür zu zahlen. Und natürlich ohne zu berücksichtigen dass die Daten eigentlich schon von der Öffentlichkeit finanziert wurden. Auch hier spielt wieder das Urheberrecht mit, oder wenigstens die von den obig erwähnten Rechteverwertern geprägte Weltbild. Aber noch viel interessanter ist hier ein anderes System, dass es erlaubt allen anderen die Benutzung von eigenen Ideen zu verbieten (Nota bene: Es erlaubt nicht die eigenen Ideen selber zu benutzen; es ist ein reines Veto-Recht gegenüber anderen). Das Patentsystem. Während akademische Forschung früher das früher zur Privatsache erklärt hat, ist es durch das Zusammenspiel der hier erwähnten Faktoren zum Usus geworden als Einrichtung Patente zu fördern, so dass schlussendlich die Öffentlichkeit eine Erfindung die sie bezahlt hat, nicht einmal mehr Nutzen darf ohne Lizenzgebühren zu bezahlen.

Diese ganzen Mechanismen machen es schwierig für Bürger die Daten die mit ihrem eigenen Geld erhoben wurden zu bekommen. Als ich 1996 im Rahmen einer soziologischen Arbeit [3] Daten gesucht habe, konnte ich die in der Schweiz nur entweder auf Papier oder sehr teuer “einzelne Anfrageresultate” auf Diskette bekommen; schlussendlich habe ich stattdessen US-Daten verwendet.

Ich bin nicht der einzige der schlussendlich irgendwie ausgewichen ist. Das http://www.openstreetmap.org Projekt besteht aus Daten die von Leuten ehrenamtlich per GPS gesammelt wurden, obwohl genau dieselben Daten schon in Grundbuchämtern und den Topografischen Institutionen vorhanden gewesen wären.

Wie hingegen die Welt aussieht wenn Bürger und interessierte Stellen Zugriff auf solche Daten haben, das sieht man in den Beispielen auf http://opendata.ch/ Schlussendlich ist die Summe eben grösser als die Anzahl ihrer Teile; und was alles aus irgendwelchen Daten entstehen kann können wir uns im vornherein nicht wirklich genau vorstellen, also ist die einzig sinnvolle Reaktion eben den Zugriff auf diese Daten möglicht vielen Leuten zu ermöglichen.

[1] Swisstopo
[2] Swisstopo: Lizenzen
[3] Attitudes towards Victimless Crimes, Peter Keel, 1996

This here is from Apple’s Slide-to-Unlock patent, which is currently being invalidated.

However, the question remains why this could be granted in the first place. Laziness? A case of “it said computer, so I turned off my brain”? Or job-blindness “I couldn’t find any prior art in the patent database”?

Because the amount of prior art is actually staggering. This here is one of the earliest I could casually find:

Yes, it’s hieroglyphs, and they’re from roughly 1290 B.C. The topmost hieroglyph is a “z” (or hard “s”), and the symbol is that of a door bolt. And since hieroglyphs are rather old, and Seti I. by no means one of the early pharaohs, this means there’s most probably much older evidence out there for “slide-to-unlock”.

And I’d wager there’s so much more of this crap out there. Chances are very slim that this is an isolated case, this is most probably endemic, system inherent.

When considering modern political debates, it always makes sense to go back, and consider where these laws come from. And with patents, it turns out, just about everything said today by critics of the patent system was already voiced more than 150 years ago.

I managed to find the archive for this piece here, OCR’d it and corrected it manually. the spelling and rather weird placement of semicolons and double quotes has been preserved from the original.

1851.] THE ECONOMIST. 811

AMENDMENT OF THE PATENT LAWS.

THE measure for amending the Patent Laws, which is about to be
discussed in the House of Commons, was very fully described by Lord
Granville when he moved the committee on the bill on the 1st inst. It
will abolish useless offices, and by requiring accurate specifications,
will prevent many frauds now practised ; it will give protection from
the date of application by a provisional registration, abolish the
system of caveats, and make all patented inventions easy of access
to the public. It will make one patent valid for the United Empire,
instead of requiring, as at present, one for England, one for Scotland,
and one for Ireland, and reduce the number of offices now concerned in
granting patents from eight to two — the Great Seal Patent Office, and an
office to be created of the nature of the Record (Attorney-General’s)
Office. The petition for a patent must be left at the Great Seal Office,
accompanied by a specification, in order to avoid the evil now very
common of schemers petitioning for a patent, and spending the six months
allowed for making the specification in appropriating some inventions to
themselves of which they have heard or got a glimpse. On depositing the
specification and paying 5£, the patentee will obtain complete protection
for six months, so that the merit of the invention may in that time be
tested. Good inventions will find a market, and less time and money than
at present will be wasted on worthless schemes. By abolishing caveats,
fraud will be avoided. At present schemers enter caveats when there is a
great probability that something useful is about to be brought forward ;
claim priority over the real inventor, and harass him or cheat him out
of his expected reward. Instead of inviting by such means an envious or
a designing man to oppose a modest and successful inventor, an invention
will be referred to scientific examiners, the title of the patent will
be advertised, and those who object to its being granted will have an
opportunity of stating their objections. Between them and the claimants,
the examiners will decide. To give a remedy against any injustice
committed by the examiners, an appeal will lie to the law officers of
the Crown.

Another improvement in the present law is to distribute the payment
for the patent, now required to be paid at once, over a period of
seven years. One payment of 20£ fees and 5£ stamps is to be made at the
commencement of the patent ; another of 40£ fees and 10£ stamps at the
end of the third year ; and at the end of the seventh year, 80£ fees
and 20£ stamps. If the invention should turn out useful, the larger
sums required at the second and third periods will be readily paid ;
and if it should not be useful, the failure to pay the second and third
instalments will void the patent, the pockets of individuals will not be
emptied to their disadvantage or ruin, and the accumulation of useless
patents will be prevented. By another clause in the bill, the publication
of an invention in a foreign country or in one of our colonies, to which
the patent laws are not extended, is considered as publication at home,
and to have a similar effect in preventing the grant of a patent. The
mere importation of an invention will not give a claim to monopolise
its advantages. Such are the leading features of the new measure,
which will be a great improvement on the existing law.

Only one of the many witnesses examined before the select committee
to which the bill was referred, advocated the present system, and he
is interested in its continuance. Some of them wished the measure to go
further but as far as it goes all the other witnesses approve of it. They
were chiefly persons connected with patents, and favourable to the
principle of the old and the new law. Before the committee no witnesses
were called, according to custom, on behalf of the public, though patents
are described as bargains between inventors and the public.
For a knowledge of their inventions, it consents to give them a monopoly
for a certain period. How its interests can be represented before such a
committee, who is at once wise enough to know the interests of the public,
and is sufficiently confided in to be its witness, we are not aware, and
the public interest was left, of course, to the care of the committee,
having, as the rule, no other evidence placed before it by such an
inquiry than that of partial and interested persons. In running over
what they said, nothing strikes us more forcibly than the many tricks
and frauds to which the patent system gives rise. Besides the caveats,
by which one man attempts wrongly to appropriate to himself the bounty
which the State gives for invention and which properly belongs to another,
the granting patents “inflames cupidity,” excites fraud, stimulates men
to run after schemes that may enable them to levy a tax on the public,
begets disputes and quarrels betwixt inventors, provokes endless lawsuits,
bestows rewards on the wrong persons, makes men ruin themselves for the
sake of getting the privileges of a patent. Patents are like lotteries,
in which there are a few prizes and a great many blanks. Comprehensive
patents are taken out by some parties, for the purpose of stopping
inventions, or appropriating the fruits of the inventions of others,
&c. Such Consequences, more resembling the smuggling and fraud caused
by an ill-advised tax than anything else, cause a strong suspicion. that
the principle of the law from which such consequences flow cannot be just.

We read, therefore, with great pleasure, Earl Granville’s manly
declaration, that ” he had gone into the committee
” with some doubt, and he was sorry to say, such was the
” obstinacy of his nature, that all the evidence in favour and
” against had sent him forth confirmed in the belief that it
” was inadvisable for the public, of no advantage for the inventor,
” and wrong in principle, to have any patents for inventions at all.”
That conclusion is not less remarkable than correct ; though we
are inclined to be somewhat sceptical as to the following
assertion by the Noble Earl, that “if the whole country were polled, the
great mass of the people would be in favour of the Patent Laws.” Such a
conclusion is naturally inspired by living for the moment in an atmosphere
of inventors and patent agents ; but believing, like the Noble Lord,
that the principle of such laws is erroneous, we have confidence in the
intelligence and reason of the community, and cannot so readily admit
that which. appears to us to be obviously wrong is generally approved
of. What the community requires is, that inventors be rewarded ; that
skilful men who contribute to the progress and improvement of society
shall he well paid for their exertions. The Patent Laws are supported
because it is erroneously supposed that they are means to this end. It
is only necessary to show, as Earl Granville and the inquiries of the
committee have shown, that they completely fail to answer this purpose,
to disabuse the community of the prejudice in their favour. To poll
the community on such a question, the arguments pro and con should be
placed before it, and from them it would ratify Earl Granville’s view,
and decide against all Patent Laws.

From Mr Ricardo’s evidence before the Lord’s committee, they would
learn, whatever attributes imagination may subsequently have given to
the grant of patents, that it was intended at its origin merely to
raise a revenue. To encourage inventors and promote invention were
after and secondary considerations, more like pretexts to justify a
wrong than the real grounds of the measure. That taxing inventions can
tend to promote them is not agreeable to the common understanding of the
influence of taxation. James the 1st raised 200,000£ a year by granting
patents. At present about five hundred patents are taken out every year;
the expense of each patent is about 350£, or a tax of about 175,000£
is annually levied on the grant of patents. To encourage invention it
is very heavily taxed. Only a few patents are very profitable, not more
probably than 1 per cent.; and by the Patent Laws inventors are annually
mulcted, independently of the sums they are obliged. to disburse for
specifications, &c., &c., of upwards of 170,000£. The State in return
for this confers on inventors nothing but what they. actually before
posseseed — the right to use their invention., and recover by its use
from the bulk of the community, if they can, the cost of their invention,
and the money the State has taken from them. All that the State does and
can do, is to promise that no, other person than the inventor shall put
his invention into use; but the State. as we know from experience, cannot
fulfil its promise, and cannot with its utmost power ensure an inventor
a return of one sixpence for his disbursements. The power to recover
them from the rest of the community depends entirely on the utility of
the invention, which exists wholly irrespective of any guarantee from
the State. It is, therefore, one of the delusions greediness fostered
by the Patent Laws, to suppose that the State can ensure an inventor,
by a patent, a certain reward for his invention.

From the evidence of other gentlemen the public will learn that patents
are artificial stimuli to improvident exertions ; that they cheat people by
promising what they cannot perform ; that they rarely give security to
really good inventions, and elevate into importance a number of trifles ;
that they much more impede than promote invention ; that most great
modern improvements, such as mule-spinning, lighting streets with gas,
travelling by railroads, and adapting steam to ocean navigation, like
the inventions of arithmetic and
printing in ancient times, were introduced independently of the influence
of patents ; and that patents impoverish, not enrich inventors. In fact,
the whole of the evidence lands us in this conclusion, that patents
are, as Mr Brunel states, productive of
” unmixed evil to every party connected with them, those for the benefit
of whom they are given and the public.” The advocates of the patent
system — the societies which are getting up all the agitation on the
subject, admit this — they complain of it. The only difference between
them and Mr Brunel, Lord Granville, Mr Lloyd, and others is, that they
attribute all the evils, which they acknowledge, to our peculiar Patent
Laws, and they suppose that by some improvement in the law these evils
would be avoided.; while the other gentlemen justly suppose that the evils
are inherent in the system itself, and cannot be got rid of by any change
in the terms and form of the law. That the Patent Laws, as they exist,
cause immense mischief to inventors and the public — that they are prolific
of expense, litigation, and fraud, all are agreed; and it is quite proper
therefore to amend the laws, that further experience of an improved law
may demonstrate to the most sceptical the real source of the evil. That
kind of practical conclusion will alone satisfy the inventors and
public. With Lord Granville, therefore, we think that the improved law,
such as the inventors and the societies and the public demand, or is
supposed to demand, should be passed ; at the same time we agree with
the Noble Lord, and the very respectable authorities he referred to,
that the principle of the law is erroneous, that the system of patents
is altogether wrong, and that no possible good can ever come of a Patent
Law, however admirably it may be framed.

The principle of such a law is to bestow on. one individual the exclusive
use of some particular instrument or object which he claims to have
discovered or invented. As long as he uses the invention himself or
for his own gratification, no interference is required ; it is only
asked for to prevent some other persons from using his invention. An
essential part of such a law, therefore — its main principle — is to
impose restraints and restrictions on all others than the inventor. On
him it confers nothing positive, it only imposes restrictions on others
for his presumed advantage. To them it does a certain injury ; on him it
confers only a contingent and doubtful benefit ; and before any such law
ought to be passed, a rigid inquiry is necessary in every individual case,
whether the probable benefit to the individual will outweigh the certain
injury to society. When patents are granted for the purpose of raising a
revenue the case is different. But when they are granted for the advantage
of individuals, such an inquiry is absolutely necessary. Accordingly,
under the old law a reference was made to the law officers of the Crown
for this purpose. Caveats were allowed and a host Of regulations were
adopted to ensure the preliminary examination. Under the new law the
duty is to be performed by a board of examiners.

A preliminary inquiry of this kind is adopted in the United States,
in Prussia, and in Austria ; but in France, where the grant of patents
is regarded only as a matter of revenue, any man may have a patent for
any thing he chooses, on paying a certain stipulated sum, leaving the
question of the validity of his claim to the invention to be settled
by a contest with his fellow-citizens before the ordinary tribunals,
should any one question his patent. In England, too, the inquiry has
been, in practice, limited to ascertain whether the new patent claimed
infringed on some previous patent. But the right of patentees are only
thought of as part of the rights of the general public, and it is against
the whole public that the privileges of every individual patentee are
guaranteed, as well as against other patentees. The principle involved
in the inquiry is the propriety of granting the claims of the inventor to
the exclusive use of his invention as against the whole society. Before
granting his claims an inquiry into them is indispensable, and the new
law, in order to secure a full inquiry, appoints a tribunal of appeal,
should the examiners not satisfy the claimants.

This circumstance shows that what is called the right of property
in inventions — the right, namely of an inventor to exclude every other
person from using his invention after it has been made known — is different
from most other rights of property. It resembles, certainly, some other
exclusive uses created by Government, but they constitute only a small
part of the property of all the individuals of a nation; are, in all
cases, more privileges than rights; and even in them it is sufficient to
establish the right that the individual is in possession. No previous
inquiry is necessary to confer it on him, and inquiry only becomes
necessary if an adverse claim be made.

It is the very nature of knowledge and skill, totally distinct from most
kinds of property, to be improved and extended by being imparted. To
limit the exclusive use of knowledge and skill to one person, as is done
in degree by the Patent Laws, is, in fact, to take measures to stop their
growth. Before the privilege to use exclusively any particular species of
knowledge and skill, which by mere inspection can be acquired by others,
be conferred by a law on any individual, a strong case must be made
out that the exclusive use is more for the advantage of society than a
free participation in it for all. If a right to such exclusive use were
a natural right of property, like the right of the savage to own the
game he has run down and begun to cook, no considerations of fancied
expediency would lead us to oppose it. But it is no such
right, and those who clamour for the exclusive use, and those who bestow
it, are the persons who fancy an expediency that experience proves not
to exist. Far from there existing in any individual a natural right,
or even power to confine to himself exclusively any knowledge or
skill, by using which he may convey that knowledge to other persons,
or enable them to acquire the skill; there exists, on the contrary,
a natural right in every individual to use any knowledge or skill he
acquires from beholding it in others ; and there is, moreover, a strong
desire implanted in most men for the wisest of purposes, as a means of
promoting the general improvement, to imitate and use any knowledge or
skill they acquire by inspection or observation. We deny, therefore,
that the claims made by inventors to the exclusive use of inventions
is a right of property ; and we deny, on the broad general principle,
that the utmost diffusion of knowledge is advantageous to society,
that it can ever be expedient to bestow patents on individuals for the
exclusive use of inventions.

The only doubt that can arise springs from the supposition, that an
individual may discover something of such pre-eminent importance
that society will be injured if he be not encouraged by a Patent Law
to make his discovery known — to inform the public of his secret, and
receive in return, as one of the witnesses expressed it, protection
from robbery. Such a statement reminds us of the “Long Range” of Captain
Warner ; but the conclusion to be deduced from that case, and probably
all similar cases is, that it was of no real importance, and that society
would not be in the least injured though all such secrets died with their
possessors. It is more conclusive, because more general against all such
suppositions, that nearly all useful inventions depend less on any
individual than on the progress of society. A want is felt, as stated
by one of the witnesses ; ingenuity is directed to supply it ; and the
consequence is, that a great number of suggestions or inventions of a
similar kind come to light. ” The ideas of men,” said Mr Ricardo, ” are
set in motion by exactly the same circumstances.” So we find continually
a great number of similar patents taken out about the same time. Thus the
want suggests the invention, and though the State should not reward him
who might be lucky enough to be the first to hit on the thing required,
the want growing from society, and not from. the individual or from the
Government, would most certainly produce the required means of gratifying
it. The notion, therefore, that any individual discovers secrets which
it would be very advantageous for society to know ; that if he were
not artificially rewarded for discovering them that they would never be
known — that society would for ever want his peculiar kind of knowledge ;
and that, because it does not reward the possessors of such secrets,
it will lose a great number of such valuable pieces of knowledge, are all
delusions. The progress of knowledge, and the progress of invention and
discovery, like the progress of population and the progress of society,
have their ordained and settled course, which cannot be hastened,
though perhaps it may be retarded, by Patent Laws.

We say thus much in support of the very enlightened views which Earl
Granville has taken on this question, and which are shared by the Lord
Chief Justice of England, the Chief Justice of the Common Pleas, the
Master of the Rolls, Mr Ricardo, Mr Brunel, Mr Cubitt, Mr Lloyd, and a
number of gentlemen of the highest eminence, who have taken the trouble to
study the subject. We have already discussed it at considerable length
on Dec. 21, 1850 and Feb. 1, and we can only be gratified at finding our
conclusions against the presumed rights of inventors supported by such
very high authority.

The source is The Economist Historical Archive, but apparently it now requires a login. So much about “Open Access” and “preserving history” or even “respecting the public domain”. So it’s altogether more important that I post this here.

I also made the two respective pages available as PDF from the original scans: The Economist, June 26, 1851

The copyright-status of this is of course public domain.

Just like the old Robot Patent (by Emperor Joseph II) this is of course all about rent-seeking.

As we’ve noted in The Moby Dick Support Device, some egregiously stupid patent-officers started accepting patents based on the un-reasoning that a computer running a program makes it a different computer, just as a bookshelf which is used to store copies of Moby Dick is an entirely different thing than an ordinary bookshelf.

Now comes the second chapter, enter the robot. Yes, they’re not doing much right now, but watch the flurry of all-new bogus patents rolling in as soon as they will get more useful. Everyone and their lawyers will start patenting everyday actions, coupled with the phrase “with a robot”.

saulgoode writes at Techdirt:

If the bobble heads at the Patent Office continue on the path they are currently following then we can certainly expect a rush of patents on all kinds of human activity with the caveat of it being done “with a robot” — e.g., dig a hole with a robot, change a tire with a robot, build a swing set with a robot — just as “with a computer” seems to justify patents being issued on things such as getting feedback from a buyer or scrolling through a document.

Ah, Arkham Asylum Patent Offices, home of the criminally insane. How could one ever, with this concise list of non-patentable matters: EPC, Art. 52, come to such a ridiculous interpretation? (Same in the USA, see The Moby Dick Support Device).

There is a thing I’m pretty good at, and that’s playing Cassandra. I’ve got a knack on realizing what “unforeseen” impact and unwanted side-effects legislature will have. And usually after the shit hits the fan I can tell you “I told you so”. So this post here is to make sure I can say “I told you so” in a few years ;).

Well, this is what the patent system will look in the end. Essentially, we’ve got two possibilities:

1. Finish the bugger off. Abort it. Ditch those government-granted monopolies for good, so innovation can prosper once again.
2. Continue as before. Pump more money and resources into a machine for corporate-warfare.

The patent-system is a relatively modern law; some countries adopted something like it in the early 18th century, but most followed up only at the end of the 19th century, often on foreign pressure (well, it’s not easy to explain why you should pay patent-holders in e.g. France if you want to export there, while not having the same stick to punish French imports into your country, see? Incidentally, that’s what patent law boils down to…).

There had been lively debates about it then, with the gist of it being “we can very much do without it and it doesn’t help innovation, but if the other country is doing this to us, we should do the same to them…”.

Of course, all these debates and the evidence that a patent-system as such has profoundly NO impact on innovation have been forgotten long ago. The patent-system has found its proponents, first of course among lawyers, which swayed the public opinion around to “it’s necessary and it’s needed for innovation” (a propaganda produced superstition).

Only in the last few decades, patent-proponents made a land-grab in widening ever more the definitions on what’s patentable: processes instead of just products, software, business-processes and genomes. And with that finally tripped onto the toes of people which until then had nothing to do with patents, and who started to realize that there is something wrong with patents. And some others noticed too, how nicely patents can be used to kill their competition.

Nowadays, with the patent-wars in the mobile sector, it’s plain to see that there is something fundamentally screwed about patents. And if we don’t stop the whole mess, it’s also quite clear where this will lead to: The patent tax.

Simply put: Everyone producing anything (apart from art) will need patents. These might be patents one owns, but these won’t be enough. Since patents do not grant a positive right (If I have a patent, it does not grant me the right to make something, since this something could be covered by other patents as well; it only grants me the right to withhold someone else from making it without paying me) but only a negative one, everyone will need to license an arbitrary number of patents from everyone else.

There is (or will be), from a macro-economic point of view, absolutely nothing to be gained from patents. For the inventors neither, they will only get some small cut for their patents back, from what they will have to pay for licensing all those other patents. In fact, the only winners in this game are the patent offices themselves, and the lawyers.

There are estimates that about 20% of the cost of any mobile phone are patent costs even now. This will, or already has, spread to all other possible devices and patentable matter: computers, cars, planes, finance (business methods!), housing, agriculture, health-care and so on. And of course, you can expect this percentage to rise. In the end, what we will have is at least a 20% lawyers-tax on everything.

Do you really think this is a prospect for a sustainable society? All entities producing anything of value having to pay taxes to lawyers? A strange world indeed..

Upon my research on 18th and early 19th century England, I stumbled upon a process that was taking place from the 16th to the 19th century in rural England.

It’s enclosure.

Basically, the medieval system is, that a village has, in addition to the fields of the individual farmers, a large commons, where all the inhabitants of that village can gather wood, graze livestock and so on.

This commons was now more and more split up amongst the villagers, with wealthier people buying land of the less wealthy ones, making subsistence-farming more and more impossible, and finally leading to widespread poverty in the 19th century.

And this is exactly the same process that’s happening since about 250 years with our intellectual commons.

Copyright, which was initially just that, a “right to make copies” and sell them, and which lasted 14 years from the publication of a work, became extended to “70 years after the death of the author” and incorporated more and more provisions for the copyright-holder.

Other laws wrapped under “intellectual property” are also working in the same spirit, none more so than patents, which provides not a monopoly on “being allowed to do something” (as copyright does) but a right of “prohibiting others to do something”. Which is of course much more far-reaching.

Trademarks also play a part in this, disallowing references to trademarks not only on ground of competition (as initially meant), but with any spurious explanation the trademark-holder can come up with to quash criticism, satire, art, history and everything else related to that trademark.

The theory, and thus the title, is of course, that these intellectual property laws are the equivalent of enclosures, and will lead to very much the same outcome in another dimension: poverty of intellectual capital and depredation of culture.

And with rows and hedges (read “technical measures”) to keep the now-inclosed commons in private hands, this will only get worse as the century wears on.

Propaganda trumps scientific evidence everytime.

Face it, there is nothing like propaganda, backed by some hearsay evidence and a few vivid examples. And science cannot offer anything to counter that.

It used to be “Statistics” in that title-phrase, but that’s not true anymore, if it ever was. You don’t need statistics to make people believe global warming isn’t happening. You don’t need statistics to convince a nation that some other nation has “Weapons of Mass Destruction”. You don’t need statistics to convince an entire world that monopolies are good for it. Nobody except scientists bother with statistics if they want to convince you of something.

Statistics aren’t appealing to your gut-feeling, examples are. No matter how scarce and how much the result of some other unknown influence they are, examples is what relates to the public, and also what causes fear and anxiety. It doesn’t matter if a few hundred-thousand people get killed in some faraway land. But if something happens to a person you know, no matter how faintly you know the person, or maybe you only read of it, this is obviously evidence for whatever malfaisance or problem-du-jour exists, and is a big problem. A freak accident gets a “security problem” with something, a robbery a “crime problem”, somebody killing himself a “suicide wave” and so on. It does not matter if said accident is the only in the world that ever happened with that specific device, your crime-rate is the lowest on the planet, and the suicide-rate the second lowest. You may now be convinced that this specific thing is a huge problem which must be addressed immediately. Of course, you probably don’t get the idea that there might be a problem yourself, so that’s why we’ve got propaganda.

Or to put the other way: People doing propaganda will use exactly that mechanism, that we tend to believe in examples and not in statistics, to convince you their lies are the truth.

Alright, some of the examples initially used are pretty far off, you you might think that you’re not afflicted with believing such lies. I’ll give you some examples (ha! See?) of things you might believe in, that have no scientific evidence whatsoever:

• In the middle ages, people thought the world was flat — That’s actually a fairy tale from the 1830ies. Since at least Aristotle nobody believed in a flat earth. Certainly not people in the middle ages who revered Aristotle as the greatest philosopher of all.
• Copyright is necessary for the compensation of the efforts of creators of works and to ensure that they will produce more. — You should have told that Shakespeare and Beethoven
• Patents are necessary for innovation — There is absolutely no scientific study which can prove that patents are in any way beneficial to innovation. There are however studies proving monopolies are always inhibiting innovation.
• Patents are at least necessary recouping costs of research and development — Well, Ciba, Sandoz, Novartis and so on didn’t need them until 1954. And they where already huge multinationals then.
• Harsh weapon laws reduce crime — No, they don’t. There’s no correlation between the availability of weapons and violence. In some places there is, but this is most probably a coincidence, resulting from some other reason.
• Knife-bans will reduce violent crime — Scissors get lumped into the same category as knifes in criminal statistics. Now guess what’s actually used most often?
• Data retention helps to reduce crime — No, it actually produces crime. Not the same ones it tries to address, but things like fraud, extortion, theft of services, privacy breaches, stalking etc.

And this goes on and on. For all of above mentioned things we hold for self-evident, there is either no scientific data backing them up, or even data refuting them. But most of those are actually the result of propaganda, the result of someone trying to get its agenda accepted. Even the flat earth is the result of (in that case anti-clerical) propaganda.

Of course, asking “cui bono” (who benefits) will often yield interesting questions about such a belief in the first place, but often might be misleading as well. Usually it boils down to “who benefits more”. More often, trying to get hard scientific data — statistics or better the raw data of the statistics — supporting your belief will immediately tell you if what you think is true really is. Because typically, you won’t find any.

The search for a flat earth in medieval sources turns up nothing — but pictures of round earths. My request for data and methodology regarding so-called “software-piracy” (a propagandist term, of course, we’re actually talking of “copyright infringement”) from the Business Software Alliance turned up only some vague statements about “estimations regarding past sales and sold hardware”, but not a shred of hard data. My quest for evidence of innovation-fostering of the patent-system turned up loads of citations of people iterating a mantra, and one paper; the paper coming to the conclusion that “there is no evidence”.

My impression is, that scientists, and scientific methods, and data, gets completely overwhelmed by propaganda. A spectacle orchestrated by propagandists to further their agenda, and also by unwittingly victims of that propaganda. It’s actually hard to believe that somebody does not have an agenda, but somehow, some scientists gave me the impression that they don’t really have an agenda — and furthermore, that they do not understand why somebody could consider the results of their work not desirable. And it’s clear, if you don’t understand why you’ve got enemies, and what they are using, you’re going to loose.

I don’t have any solution to this, apart from educations, but it’s terribly hard to get people to get themselves informed when everyone is surrounded by propaganda and propaganda-induced misconceptions daily spewed by mass-media and repeated by websites every day. And, most of the above propaganda is actively backed by powerful interests in economy and politics.

I didn’t include any links to research in this post, but you’re welcome to do your research on these topics yourself. Otherwise, you’ll also find some posts on this blog which sum up some of the topics mentioned and link to further articles and research.

BitOBear wrote on Groklaw

As a side thought, a device doesn’t lose its nature when applied to a particular purpose. If I buy a bookshelf and put nothing on it, or only put a single copy of Moby Dick, or I burden it down exclusively with copies of Moby Dick, it doesn’t become a “moby dick support device”, it remains a bookshelf.

I have heard tell that the argument is that when I run a spreadsheet program on a computer it becomes a spreadsheeting machine, so the patent people argue that it _becomes_ a “particular machine”.

This “moby dick support device”-reasoning is exactly what European Patent Office is doing in regards of the European Patent Convention (EPC) Article 52 which excludes computer programs “as such” from patentability.

Since it’s not possible to patent software “as such”, they let their clients redefine general purpose computers as “special devices running said patented software” and accept that.

Indeed, there is a case in the US In re Alappat, in which exactly this ridiculous proposition was accepted by the court. The same bogus is repeated In re Prater: “But once a program has been introduced, the general-purpose digital computer becomes a special-purpose digital computer […] which, along with the process by which it operates, may be patented subject”

To go a step further, not only does a general-purpose computer not become “a special purpose computer”, but it also does nothing but mathematics. Which are, again according to patent law (and this time even the US one which allows software patents), not patentable. See 1+1 (pat. pending) which explains not only why computer programs are nothing but math, but also how to possibly prove this to a court.

I not only wrote a lot on copyrights, but also on patents:

• A (Patent-)Law to promote the welfare of Lawyers Rent-seeking behaviour among patent lawyers.
• Patents kill Innovation The patent-system achieves in nearly all cases the opposite of what it was supposed to.
• Intellectual “Property” and other contradictions Rhetoric of proponents of monopolies.
• Sue Everyone for your genetic pollution How patents in pharmacy and biochemistry are abused.

In contrast to copyrights, in which interests of all involved parties have to be carefully balanced, with patents the case is very clear cut: Nearly everyone, including companies holding a lot of patents, are victims of the system. The only people profiting are lawyers and patent-trolls. The only exception among the patent-holders are some of the pharmacy- and biochemistry companies: They’re perpetrators, and the victims are everyone else.

the only logical course of action

You can’t sustain a system which funnels 20% of all production costs into the legal system.

The state and its bodies are prohibited from 
enacting laws allowing temporary or perpetual
monopolies on ideas, inventions and innovations. 

Pharmacy

Pharmacy is a somewhat special case, since there the costs associated from patent licenses are actually higher than the legal costs. Also, development costs are very high, mostly due to required tests mandated by the gouvernments. On the other hand, pharmacy companies are among the worst offenders of abusing their monopolies; thus a “special patent law” only for pharmacy and biochemistry would not be warranted.

However, since patents somehow alleviate for costs mandated by gouvernment, it seems prudent that the costs for tests are in turn taken over or subsidied by gouvernment. At least in the initial phase.

I already wrote about it, on how Patents kill Innovation. If you’re looking for more background on some of the assertions in this text, they’re explained there.

Right now the german Bundesgerichtshof decided that it would be a good idea to allow software Patents, even if the European Patent Treaty says in Article 52 “The following in particular shall not be regarded as inventions … mathematical methods … programs for computers”. How did the BGH get the idea to rule on such a case in the first place, and not dismiss the whole affair as illegal and contempt of justice?

Either this is, according to Henlons Razor, an act of incredible stupidity, or there were some serious interests in the background lobbying. And in fact, those interests very much exist, and they’re very much part of the judical system itself.

As it happens, apart from Pharmacy, nobody will make money from Patents he applies for. Yes, this sounds like a very bold statement, but keep in mind that this applies to all of the patents of a field taken together; there might be financially successful patents among them, but this is eaten up by all the other patents which just cost money. No where does this money go to? Legal costs of course. So in all fields of enterprise except pharmacy, patents only fill the coffers of Lawyers, Attorneys, Judges and the Patent Office. It has been estimated that those costs make up to 20% of the final product price, making the patent system in the end just a tax-system which funels a tax of 20% to the legal system.

Obviously, those on the receiving end have a strong inventive to keep it this way, and won’t allow anyone to interfere with their rent. And most probably this is what happend with the BGH. As people in the legal system they are bound to know a lot of people also in the legal system, and those Lawyers and Attorneys will have biased views which they probably have communicated to the BGH. By now, the BGH is probably firmly convinced that patents are necessary for innovations to happen (or any suchlike hogwash).

Are you curious about that “Pharmacy exemption”? Well, the patent system works there (with its main effect) as intended, with some severe side effects. Patents are granted, the patents licensed to third parties, and the license-fees not only cover the legal costs but are high enough to make a decent profit. Not anticipated was that the big players in that field lobbied succesively “patents on prducts” and “patents on genome-sequences” into the law, plus that they wreck havoc on smaller players and on the general public, most noteably on the public in third world countries.

So even if patents on pharmacy work as expected when viewed from within the system, the idea of patents as such is inherently flawed in regard of innovation, development, economy and ecology. And if you’re a proponent of free markets, patents as “government granted monopolies” are an abomination anyway. Patents are an inherently mercantilistic idea (especially due to the fact that a patent does not allow you to produce any product, but allows you to forbid your competion to produce it), along the lines of such illuminaires as tariffs, subsidies and protective duties.