Of men and machines

I wrote my customary piece for the Finnish magazine IPR Info published by IPR University Center a month ago.

Yesterday I got a remarkable wiki-paper on IBMand its new patent policy, created mostly by IBm. I attach parts of it here. The source is publication called Managing Intellectual Property.

I print them here in my blog because the issue is immensely important.

(IPRinfo Special Issue, September 2006) Jukka Kemppinen

In Intellectual Property Law there are serious conceptual difficulties. This is not news. The linear development of copyright, patents and those other branches had been going on for 130 years, until the new digital environment started to heap difficulties on us ten years ago, possibly because of the advent of the Internet. No-one really knows what will happen next and what is actually happening now. Possibly this is the “epistemic rupture” often preached by the French structuralists. We may speak, instead, of non-linear development.

We cannot avoid the concept “information” in law, although we know that it is the reason of so many misunderstandings. Copyright, patents and trade-marks are something about information, processing information and using preprogrammed information. This term is not helpful. Life on the planet is also processing and storing information, genetic information coded in DNA.

Sometimes information means “decision” on accepting or discarding proteins, sometimes it refers to books or songs, sometimes bit-streams or other signals, as in the mathematical theory of information. We might suspect that system theory, which has very much to do with decision making and risks, gives us one clue: information in a closed system may be very different from information in open systems, not to mention complex-systems, such as organisms.

European legislation on data-bases is a criminally insane way of mixing “information” and processing (programming) information. Somebody may have a sole right to use so-called instances in a data-base (information), given that those instances are arranged (processed) in a certain way. The laws demand “investment” in structural arranging information for a data-base. This means, ultimately, energy, although the law has coined this metaphor using economic investment as a model – “investing human, technological and economic resources”…”qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or reutilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database”.

Money buys skill.

There is no information without energy, as the well-known example and refutation of “Maxwell’s demon” exemplifies.

It is common that IPR legislation is used as a means of protecting information. This is logically impossible. It is exactly as owning or stealing energy. It is possible to own means of creating energy or equipment for transmitting and storing it. The same is true of information, the counterpart of energy.

Creating wealth was the main topic of authors from Adam Smith to Marx and Lenin. The problem of creating and claiming exclusive right to information is still almost virgin soil. We claim ad hoc that exclusive rights to information as such is absurd and that it is actually being done.

There is something resembling the opening of American frontiers – a mad rush to stake information. This will cause major difficulties.

The solution has been shown by the Japanese. We must change legal thinking and stop analyzing various forms of IP and various prohibitions against disseminating e.g. insider information or information pertaining natural security. Instead we need a vast and necessarily complicated program of protecting instances (or platforms) of information in certain cases.

This means letting go the concepts “work”, “invention” and their likes. To achieve this, we must deepen our understanding of the economic, societal and cultural behavior of information. This might be the Herculenean task of the young generation.

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IBM launches global patent policy
Shahnaz Mahmud, New York

The world's biggest patent filer has introduced a new patent filing policy that will change the way it applies to protect its inventions.

Computer technology company IBM says that it will make its patent applications open to community review, promptly and publicly record assignment of all patents and published patent applications it owns, and make publicly available more than 100 of its business method patents, which it claims amounts to about 50% of its total portfolio of business method patents.

The company has also pledged to file applications for business method patents only when the invention contains substantial technical content. It says this will "substantially reduce" filings of these patents.

IBM says the changes to its internal rules will put its newly articulated patenting principles into practice.

These say that patent applicants are responsible for the quality and clarity of their patent applications; patent applications should be available for public examination; patent ownership should be transparent and easily discernable; and pure business methods without technical merit should not be patentable.

David Kappos, vice president and assistant general counsel of IP law at IBM, said he hopes other companies adopt this policy – or formulate their own.

The aim is to encourage patent applicants to take more responsibility to assist the patent process, he said. "This is at the core of our patent policy. Applicants need to step up to the plate in accepting responsibility for the quality of their work – and need to take action," he said.

IBM says its decision to develop a new patenting policy is the result of a two-month online forum it organized to facilitate debate about the IP system and innovation in May and June, the results of which have been published.

Fifty lawyers, economists, academics, technology specialists and government officials used a wiki-style forum to exchange ideas that served as a basis for the new policy.

(...)


Mark Lemley, a law professor at Stanford University, said: "I think it's quite striking that IBM, which probably holds more business method patents than any other company, now thinks they are a bad idea." But he praised the company for committing to early publication of applications.

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http://www.managingip.com/default.asp?page=9&PubID=198&SID=654548&ISS=22614&LS=EMS108192