Copyrights, Trademarks, Patents, by Tobias Kuban and Matthias Bock
Transcript of Copyrights, Trademarks, Patents, by Tobias Kuban and Matthias Bock
BIOFLUX
presented at
Do It Together - Digital Biologya seminar organized byin January 2016, Berlin
Patents
And why Intellectual Property and Open Source are not necessarily mutually exclusive
Tobias Kuban and Matthias Bockwww.tobiaskuban.com / www.matthiasbock.net
Contradiction?
Patents:„All about property“
Open Source:„All about sharing“
Scope
● German law● Partially: European law
English terminology is not always equal with the German meaning!
What are patents?● Exclusive right
● Exclusionary right
● Granted by the sovereign state
● Monopoly for a limited period of time
● Usually 20 years validity from filing date (section 16 (1) PatG)
● In exchange for detailed, public disclosure of the invention
● Publication after 18 months
● Subject to payment of maintenance fees
● Applies only to commercial uses
Requirements for a patent
● Section 1 (1) Patent Act (PatG)
● Patents shall be granted for inventions in the field of technology
● Provided that:
– they are new (neu), meaning not yet published,
see Section 3 (1) PatG
– involve an inventive step (erfinderische Tätigkeit)
– are suspect of industrial application (gewerblich anwendbar)
When is a patent still „new“?
● Evident abuse in relation to the applicant or his legal predecessor, see Sec 3 (5) Nr. 1 PatG
● Invention displayed at an official, or officially recognized, international exhibition falling within the terms of the Convention on international exhibitions signed at Paris on 22 November 1928, see Sec 3 (5) Nr. 2 PatG
● Patent application in a country of the Union,
compare Sec. 4 Paris Convention for the Protection of Industrial Property
What is an invention?● Historically: Static definition of technology
– Teaching for planned action
(Lehre zum planmäßigen Handeln)– Using controllable forces of nature
(unter Einsatz beherrschbarer Naturkräfte)– To achieve a causally effect
(zur unmittelbaren Erzielung eines Erfolges)● Today: Dynamic definition of technology
(dynamischer Technikbegriff)
Not patentable:
● Business models● Mathematical methods● Scientific theories● Aesthetic creations● Processes involving human gametes● Processes for cloning human beings● ...
Why patents?
● The plagiarizer saves the cost of research & development and can thus offer the cheaper bargain
● Fewer money for inventors equals less incentive for researchers; no chance to recover investment
Are patents evil?● Do patents harm innovation?
● Depends on ex post or ex ante point of view:
– Ex post: patent granted; temporary monopoly has negative impact on competition and innovation
– Ex ante: before an invention took place a rational investor will only have the necessary research conducted if there exist measures to recover the associated research costs
● Alternatives:
– State finances research in public institutions => good for basic research, since usually not done by companies, because monetarization impossible; impractical for applied sciences, because research often product-specific
– State finances commercial research => inefficient, danger of corruption
– State grants patents
What is copyright law?
● In Germany actually: Urheberrecht („authorship law“)
● Author's own intellectual creations constitute works (persönlich-geistige Schöpfungen)
● No registration necessary
● Threshold of originality necessary (Schöpfungshöhe)
● Theory of „small coin“ (Theorie der kleinen Münze)
● Applies to everyone
Differences betweencopyrights and patents
● Intellectual creation
● Bare algorithms not protected
● “Penny dreadful” might be protected
● No actio popularis
● Technological innovation
● Algorithms might be protectable
● Only protectable, if not obvious to a person skilled in the art
● Actio popularis
Totally different scopes of protection
Is copyright sufficientto protect software?
● Own intellectual creations like coding style are protected but have a low value
● Economical value is often the algorithm● Algorithms are not protected by copyright, but
might be by patents
What happens, when softwarecan't be patented
● Algorithmic “magic” is out-sourced, so that the user has no physical access to it (e.g. web)
● Obfuscation: Algorithms implemented in an obscured way
e.g. JavaScript: “Open Source” by nature, but with unreadable “Source Code”
Undesirable effects
Requirements for a software patent
● Algorithm must be technical
● The innovative, new aspect must be technical
● The software implementation must not have been pre-invented as a hardware implementation
Plant Variety Protection Law
● Rights for the discoverer/breeder● Exemption for farmers:
Rebreeding allowed for reasonable fee● Research exemption:
Protected sort may be used to breed new sorts, if they are not primarily a derivative sort
● Longer protection period, than patents
Utility Model Act
● Lower costs● Faster application process● Shorter protection period● Protects also diligence
Act Against Unfair Competition
● Protection against slavish imitation● No registration necessary to enjoy protection
What is „Open Source“?
● No legally binding definition
● Gratis vs. libre: „free as in free speech, not free beer“
● Licenses that are recognized by
– Open Source Initiative (OSI)
and/or
– Free Software Foundation (FSF)● Different philosophies, for us: especially OSI criteria
Open Source Initiative criteria
● Free Redistribution
● Source Code
● Derived Works
● Integrity of the Author's Source Code
● No Discrimination Against Persons or Groups
● No Discrimination Against Fields of Endeavor
● Distribution of License
● License Must Not Be Specific to a Product
● License Must Not Restrict Other Software
● License Must Be Technology-Neutral
Why Open Source?● Transparency● Trust● Independent auditing● Protection of civil rights and democracy especially in the light of
programs of mass surveillance● Compatibility: fewer proprietary solutions● Fewer bugs● Increased collaboration between developers● Custom tailored solutions are easy to assemble from existing
works● Sharing between developers to prevent redundant
development● Existing solutions can act as example / be used to learn
Are patents „Open Source“?
● Common idea: openness and transparency of idea, instead of secretiveness
● Higher incentive to open-source implementation and software, since the commercial value is protected by a patent
● But: Commercial use is not free
Partial overlap
How can a patentbe useful for you?
● Protect yourself against claims made against you,e.g. in case of mutual patent usage
● Protect yourself against others patenting your inventions (priority principle)
● Monetarization of your ideas
● Protection against „big business“ taking over your ideas without compensation and push you out of market by means of economy of scale
Potential problems for DIY projects
● Cost for– state of the art research– application, especially if in several countries
and languages– legal advice– yearly fees– patent enforcement
● Openly developed projects are in principle not patentable state of the art not new
5000+ €
40+ €
70-1940 €
depends
depends
Possible solutions
● Can be open sourced after patent application
● Legal aid (Verfahrenskostenhilfe)
● Half fees for FRAND
● Business startup: attract investors, access to bank loans
● Crowdfunding
Conclusion
● Common idea of openness and transparency
● Idea is to spread knowledge
● Grant everyone access to knowledge and inventions
● Copyright and patents have different scopes of protection
● Higher incentive to open-source
Thank you for your attention!