[A2k] Google/Android Patent Wars Highlight Need for Compulsory Licensing of Patents

Erik Hjalmar Josefsson erik.hjalmar.josefsson at gmail.com
Mon Aug 15 16:01:40 PDT 2011

Dear Jamie,

I have to react to your statement that complex products like software 
"involve a lot of patentable technology".

Under the European Patent Convention art 52, software is not "patentable 

    (1) European patents shall be granted for any inventions which are
    susceptible of industrial application, which are new and which
    involve an inventive step.
    (2) The following in particular shall not be regarded as inventions
    within the meaning of paragraph 1:
    (a) discoveries, scientific theories and mathematical methods;
    (b) aesthetic creations;
    (c) schemes, rules and methods for performing mental acts, playing
    games or doing business, and programs for computers;
    (d) presentations of information.
    (3) The provisions of paragraph 2 shall exclude patentability of the
    subject-matter or activities referred to in that provision only to
    the extent to which a European patent application or European patent
    relates to such subject-matter or activities as such.

Of course boundaries of what is not regarded as inventions are just as 
abused as exclusions from patentability of subject matter which it is 
not new or does not involve an inventive step. But EPC art 52 does not 
change because we know that obvious and known software solutions are 
granted patents. The European Patent Office even grants USPTO class 705 
business method patents.

That practise aside, the EPO recognised art 52.2 as "problematic" when 
they suggested to delete programs for computers from the list. That 
failed, which was one of the reasons the software patents directive was 
proposed by the Commission. That failed too, so in Europe we still have 
an unambiguous notion that certain achievements are not inventions, 
among them programs for computers. As a matter of fact.

Further, I cannot but think there must be leaner ways forward in the 
software sector (where Google obviously operates) than compulsory 
licensing. I mean, we can all live with iPhones instead of Androids, no? 
Yes we can, so the state will have difficulties to come up with 
reasonable grounds to force patent owners to license their patents. 
Instead, maybe it's better if the state incentivised software producers 
to licence their products under GPL through public procurement?

That would not even require patent reform, just the application of 
already expressed policies.

Best regards.


On 08/15/2011 09:58 PM, Krista Cox wrote:
> Source:
> http://www.huffingtonpost.com/james-love/googleandroid-patent-wars_b_927426.html
> Google/Android Patent Wars Highlight Need for Compulsory Licensing of
> Patents
> by James Love
> The announcement this morning that Google wants to spend $12.5 billion to
> acquire Motorola Mobile -- for its patent portfolio, is just the latest
> evidence the patent system is not working. The issue that Google is
> struggling with is a common one. Some complex products, like mobile phones,
> computers or software, involve a lot of patentable technology.
> When there are hundreds or even thousands of patents in a product, there is
> almost no chance that anyone can make and sell the product without
> infringing patents from third parties. Part of the problem is the "quality"
> issue -- the tendency of the USPTO and other patent office to grant patents
> that never should have been granted in the first place, because the concepts
> are old, or the innovation was so predictable that it did not meet legal
> standards for patents. But this is not the whole problem. Even if you could
> get rid of all of the poor quality patents, there will be cases where one
> small invention can block a much larger, and socially valuable product.
> Many who are appalled at the current patent wars over mobile
> telecommunication devices see the patent system itself as outdated and
> nonredeemable. They may be right. But before getting rid of patents
> altogether --- a very difficult and unlikely strategy for reformers -- it
> makes sense to look at other reforms, which challenge the exclusive rights
> of patents, while allowing patent owners to benefit from reasonable
> royalties when their inventions are used.
> Most countries outside of the United States have compulsory licensing
> statutes that can be used to force patent owners to license patents on
> reasonable grounds. The United States also has laws that can be used for
> compulsory licensing of patents, but the laws are not designed to deal with
> our current problems.
> In 1917, the US government forced the Wright Brothers and other holders of
> key aircraft patents to form the Manufacturer's Aircraft Association (MAA),
> a patent pool that allowed more than 60 firms to manufacture airplanes,
> without fear of patent litigation. This patent pool focused the attention of
> airplane manufacturers on the quality of their aircraft, not the skills of
> their patent lawyers. Later, the US pushed to force greater access to
> patents on radios. In the 1950s, the U.S. forced compulsory licensing of
> thousands of patents in a wide range of fields. The U.S. government set up a
> special compulsory licensing statue for nuclear energy -- so investors would
> not be threatened by patent litigation after sinking millions into new power
> plants. In the 1970s, the clean air act came with a compulsory licensing
> statute, so that no one would have a legal monopoly on technologies related
> to government mandated clean air standards.
> The romantic notion of an individual inventor is not appropriate for
> industries like the computer, software or mobile phone markets, where
> collaboration and adherence to standards are key to success. What is needed
> is a 21st century approach to compulsory licensing of patents, that
> facilitates voluntary licensing, and provides reasonable and fair rewards to
> patent owners, without becoming a tool for anti-consumer and anti-innovation
> cartels and monopolies.
> One simple proposal for reform would be to provide for a liability rule
> approach, where firms retain the freedom to operate, when they pay into a
> fund to reward patent owners. For example, for consumer electronics, a firm
> could make any product it wanted, so long as they paid 6 to 10 percent of
> their revenues into a patent royalty fund. The money from the patent fund
> could be divided among the competing patent owners, by an independent
> arbitrator. That would speed up product development cycles - a lot.
> There are other types of reforms to be considered also. But they all go way
> beyond the pathetically unambitious "patent reform" legislation Congress is
> considering.
> (For an example of a very different type of reform, for new drugs and
> vaccines, see this discussion of S. 1137 and S.1138).

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