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!