Bronwyn H. Hall & Rose Marie Ham: The Patent Paradox Revisited
Paul B. Laat, philosopher from Groningen, argues that mathematical concepts should be patentable without any reference to practical applications. He points out that such references lead to inconsistencies and that it would be better to instead limit the range of objects against which patents can be enforced. Unfortunately he does not engage in a serious discussions about the latter or about the economic implications of unlimited patentability. Instead he points out that some important mathematical inventions in renaissance times were kept secret for decades and might have been known earlier had there been a patent system on mathematical ideas in place.
- Bronwyn H. Hall & Rose Marie Ham: The Patent Paradox Revisited
- IRLE IRLE v20 (2000), /p:187-204
The abstract says:
The patenting of software-related inventions is on the increase, especially in the United States. Mathematical formulas and algorithms, though, are still sacrosanct. Only under special conditions may algorithms qualify as statutory matter: if they are not solely a mathematical exercise, but if they are somehow linked with physical reality. In this article, the best results are obtained if formulas and algorithms are only protected in combination with a proof that supports them. This argument is developed by conducting a thought experiment. After describing the development of algebra from the 16th century up to the 20th century (in particular, the solution of the cubic equation), the likely effects on the development of mathematics as a science are analyzed in the context of postulating a patent regime that would actually have been in force protecting mathematical inventions.
Laat points out the inconsistencies brought about in the US by limiting patent claims to applications of mathematics, citing the Karmakar and RSA examples. He then cites examples of advances in mathematical knowledge in renaissance times that were kept secret and that, according to Laat, would probably have been published earlier if there had been a patent system in place.
What lessons can be drawn from this thought experiment? If the results are any guide to present-day developments, they would argue for a BLANKET ACCEPTANCE of mathematical formula and algorithms as statutory matter for patent applications. Let us finally acknowledge that mathematics belongs not only to the 'liberal arts' but also the 'useful arts'. Let us abolish the 'pure-number condition'; even if it is all mathematical abstraction, this is acceptable. There is no need to specify links with 'physical elements' or 'process steps', with 'pre-computer' or 'post-computer process activity'. Even if nothing of the sort is specified, the claim is acceptable. Let us not bother that the claim 'wholly preempts' the use of the algorithm; let all possible commercial applications effectively become protectable. It should be stressed that noncommercial, in particular academic, use is to remain possible (experimental use exception). Actually, it is the development of both (pure) science and (applied) technology that the system is designed to foster. Such unconditional acceptance, however, should be carefully formulated as to what is protected and what is not. While the protection of formulas tout court is acceptal in societal terms, the best results seem to be obtained when algorithms and formulas are only patentable in combination with a supporting proof. That arrangements keeps avenues open for inventive mathematicians to develop alternative methods of proof.
Laat suggests that patent monopolies could have helped to incite pure mathematical research activity as long as that activity itself is patent-free. However he does not attempt to weigh the possible burden that these monopolies place on the overall economy.
Although he correctly states that such a general patentability shifts the focus to the question of what kind of activities can constitute infringement and advocates that there should be clear restrictions concerning this, he does not propose any helpful criteria that could serve to clarify these restrictions in a consistent and meaningful manner.
He does however issue some warnings about the possible consequences of his approach, saying e.g. that 16th century examples may not be adequate for analysing today's problems and that there is a danger that too burdensome monopolies could be imposed on society by this approach.
- Laat's Article
- The full text can be downloaded in PDF form.
- European arguing for patenting pure math formulas
- Greg Aharonian reports enthusiastically about a European philosopher who seems to share his opinion and is therefore a true scientific thinker. Contains a copy of the abstract.
- Laat is trying to solve the problems of dead men
- Erik Josefsson quotes some more text pieces from Laat to relativise Aharonian's enthusiasm.
- Laat and Tamai
- Hartmut Pilch argues that Tamai's article pointed out the same inconsistency, i.e. that of allowing the patenting of abstract mathematics only in combination with an irrelevant practical application. But Laat seems to be overlooking some important questions that arise from this.
- Bronwyn H. Hall & Rose Marie Ham: The Patent Paradox Revisited
- A leading US scholar of patent law who is said to have exerted an overwhelming influence on patent jurisdiction of major US patent law courts such as the CAFC, explains that it is not consistent to grant patents on practical applications of mathematical algorithms but not on the algorithms themselves. Chisum argues that mathematical methods are useful inventions just like any other methods and should be granted independently of any specific tangible application. Any future tangible application that uses the mathematical method should fall under the claim.
- Tamai 1998: Abstraction orientated property of software and its relation to patentability
- Prof Tamai of Tokyo University shows how patenting of software clashes with some of the underlying assumptions of the patent system. The patent system relies on requirements such as concreteness and physical substance in order to keep the breadth of claims within reasonable limits. Software innovation however is the art of making processes as general as possible, i.e. the art of abstraction. Tamai quotes a set of patent claims from the SOFTIC symposium of 1993, where patent officials from JP, US and EU judged the patentability of an example algorithm at different levels of concretisation. The European representative was more willing than his colleagues from US and JP to grant patents on abstract claims, but even he shyed back from granting them at the level that really represents the innovative achievement. Tamai shows how this inconsistency leads to a series of other inconsistencies. Tamai sees only two ways out of the inconsistency: (1) acceptance of abstract claims (2) exclusion of software patents.
english version 2003/12/17 by FFII