Mass for an Oprhanage. Column

The title means our Patent system. The name is Mozart’s Mass KV 139 (Waisenhaus) – as delightful as the ”Sparrows’ Mass”. But there is scant delight in patents – and copyright.

”Orphaned works” are under scrutiny. Both for libraries and for the common reader these works, whose authors are honestly impossible or very difficult to find, is one of the central puzzles on this digital era.´

Patents are not fatherless, although we once saw a series of very difficult cases in at least 12 European countries arising from Soviet Union’s opinion of German Intellectual Property as its rightful spoils. On the western market double ”owners” of patents and trade-marks like BMW, Agfa, Bayer, Carl Zeiss and many others caused trouble.

The current writer participated in a case at the Finnish Supreme Court, where one of the problems was a Finnish, Soviet-owned enterprise (Seximo Oy), and USSR itself as business enterprises…

At present we have considerable problems caused by the lineage of patents.

Dan L. Burk and Mark A Lemley published an excellent book ”Patent Crisis”. They take up the problem sometimes articulated here, too. It is the industry-specific nature of patent system.

My example: equivalences in interpretation of patent claims is to my mind an obvious way of handling some pharmaceutical patents. If it is question of analogous processes, the courts actually have no other alternative than falling back to this simile.

Then again in ICT, typically in disputes concerning computer software, the traditional concept ”equivalence” is completely unnecessary and confusing. With some right one might say that almost all software is derived in an equivalent way from half a dozen non-patentable sets of algorithms. Their implementation in computer-code naturally is complicated and feasible only for an experienced expert.

Her we are – a man experienced in art, in German ”Durchsnittsfachmann”! In all Europe this is the traditional definition. A patentable invention cannot be conceived by an experienced expert, who is very skilful but sadly stupid – incapable of having bright ideas.

Patent law is both in the continental and British tradition very closely related to regulating monopolies. In Germany the now unpopular cartels were even formed as patent pools. This is eloquently described by Alfred D. Chandler in his magisterial ”Scale and Scope. The Dynamism of Industrial Capitalism”.

Small wonder that patents as a branch traditionally consists of industry-specific divisions. Everybody working with patents knows that patent experts in chemistry and those who know very much about engines seldom meet and normally do not meet.

In unison with Burk and Lemley we should now forget the pious lie about ”patent law”. We actually have many different kinds of patent law. One of our urgent dilemmas is the ”spill-over” from remote territories – using concepts, tests and definitions that are generally accepted in connection of a specific industry, dealing with something very dissimilar.

And by the way, exactly the same problem used to lurk in copyright. Now it is in broad light. Talking reasonably as well as rationally computer-programs, musical shows, hastily jotted private letters and doctoral thesis on higher mathematics have very little in common.