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Kahin



Her er mere fra Kahins raport:
http://www.firstmonday.dk/issues/issue8_3/kahin/index.html
den er simpelheten glimrende. Läs den.

//Erik

In early 2002, the Federal Trade Commission (FTC) and the U.S.
Department of Justice (DOJ) initiated a major series of hearings on
intellectual property and competition [98]. These hearings were not
limited to the interface between patent law and antitrust but included a
review of the patent system as a whole, occasioned by concerns that the
system might be operating to disfavor the role of competition in
spurring innovation[99]. The agencies held hearings throughout the year
on a wide variety of topics, including two half days in February devoted
to business perspectives on patents in the ICT sector [100]. The
hearings demonstrate problems not just in software but throughout the
ICT sector, although they may be most severe for software[101]. These
include a high degree of uncertainty and risk, patent inflation,
widespread inadvertent infringement, inability to manage patent
information, cross-licensing at the portfolio level (to the detriment of
new entrants), and practical failure of the disclosure function [102].

The Commission acknowledges the issue of inadvertent infringement in the
Frequently Asked Questions released with the directive but summarily
dismisses it [103]. Yet there was abundant testimony at the FTC/DOJ
hearings that the inadvertent infringement is commonplace - and in many
areas of ICT, not just software [104]. Widespread inadvertent
infringement is one of the hallmarks of the overpatenting phenomenon
noted by the Institute for Information Law study commissioned for the
European Parliament. The problem reflects a fundamental tension between
patent and copyright. As a legal matter, patent and copyright cover
different aspects of software, but as a practical matter the advent of a
patent regime for software diminishes the value of copyright. Copyright
only proscribes certain behavior, whereas patent law presumes perfect
knowledge of patents granted, as well as applications that will be
granted in the future. Under copyright, developers have confidence in
their ownership of what they create, whereas patents undermine
confidence in the ownership of original programming [105]. The FTC/DOJ
hearings make clear that knowledge about the ICT patent environment is
costly and impractical to acquire - even knowledge about one's own
portfolio [106]. Among larger players the problem is resolved by the
cross-licensing of portfolios; however, this works against small players
and especially new entrants, who may find it difficult just to identify
the licenses they need to participate [107].




 
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