Third Paradigm between Patent and Copyright Law

In the case of physical abstractions, there is a gradation from the material product to a process more or less closely connected thereto to a fully immaterial description of that process. In the field of logical objects, all three correspond to a computer program, which unites multiple aspects in one.

To the degree that a property object is detached from matter, it tends to become a public good through cheap replication. Utility certificates are granted only for material products while patents are also granted for processes connected thereto, but not for process descriptions, although the latter have a market value which is often diminished by imitators. The thoughts are free. Information spreads even faster than thoughts. The more easily an object can be replicated, the less people are inclined to slow down its diffusion by property titles. If the cost of replication is zero, than the slow-down factor would be "something divided by zero", i.e. infinitely painful.

There is a similar gradation between "creations" and "inventions" on the one side and "discoveries" and natural ressources on the other. While the former are concrete and individual, the latter are found in identical form by anyone who comes across a certain place, be it in the physical world or in some mathematically constructed space.

On all these gradation axes, the typical software patents are situated in the lower right corner, in what seems to be a public domain by natural law. To hand out 20 year monopolies on software concepts thus seems as much counter-natural as on the other extreme the collectivization of kitchen utensils in the "people's commune movement", by which Mao Tse-tung created a famine in China of 1960. Humans can establish any property regime they want, but natural law lashes back and we pay the price.

Many Discutants have warned against allowing any type of appropriation of abstract-logical concepts: on the one hand side such property rights would very often not compensate the really cost-intensive part of the software innovation process, while on the other hand side generating high public costs by limiting important freedoms.

Many software developpers and IT entrepreneurs consider software copyright to be "quite sufficient" or even "perfectly tailored to the reality of software innovation".

However here and there we can find extreme counter-examples. Some mathematical theorems were known for centuries before someone came up with a successful proof. Yet even this does not mean that a simple and brute monopoly on all computer program implementations of an abstract-logical innovation is the price that society has to pay. Besides patent-like monopolies, less disruptive remuneration systems should be envisaged for this realm.

1. application of the method for commercial purposes
2. implementation of the method in property-restricted objects (e.g. in proprietary software)

1. the right to use the method for achieving interoperability
2. the right to publish the method in freely republishable information works (e.g. free source code) with an appropriate pointer to the usage restrictions

The published logilege description comprises one or more reference implementations and a set of claims. The logilege description must satisfy strict formal and material requirements so as to make it easy for the public to access the description and test its validity.

The logilege enters into force on the day of its publication. There is no examination procedure. The owner guarantees that claims are valid by paying a deposit of 5000 EUR, which will be paid to the first person who succeeds in proving the invalidity of the logilege. One serious flaw, such as an inadmissible claim, suffices to invalidate the whole logilege. Posterior narrowing of claims is not allowed.

Initially only the "problem to be solved by the innovation" is published together with the prior art, and the whole logilege description is made available only in an unreadable encrypted form and decrypted after one month. During this month, any person may publish solutions to the problem, which become prior art. If such prior art invalidates the logilege, the deposit sum is paid to the author of the earliest invalidating publication.

The applicant may allow more time for the problem solving quest and in return obtain a longer exclusion period, e.g. one extra year of validity for each extra week of problem solving quest.

The owner of a logilege publishes an innovative abstract-logical method and enjoys exclusion rights on L1 for a fixed number of years starting from the day of publication.

The logidend excludes nobody from use of the idea. However verbal tribute should be paid to the innovator wherever the idea is used.

The rules for sorting out real innovations are similar to those of the "logilege" outlined above.

Many aspects of the logilege could also serve to inspire a reform of the existing patent system. But patent lawyers will contend: "if it ain't broke don't fix it". Within the framework of patent treaties, reforms may meet even more obstacles, starting from a minimum requirement of 20 years of patentability (TRIPS Art 32). It will be hard to overcome the resistance from those who insist that the conventional patent system works well enough in its home-base area of physical inventions. In the area of logical innovation however more refined means such as the invalidating quest system are indispensable, because the truly worthy innovations must be filtered out from a volatile world where innovation is daily routine and the state of the art is rarely consulted let alone documented. Thus any abstract-logical property paradigm faces specific challenges, for which the patent system never needed to develop an answer.