[Patents] Re: french views

[Stefane Fermigier sf@fermigier.com]

On Sat, Oct 07, 2000 at 12:13:38PM -0400, Gregory Aharonian wrote:
> Stefane writes that Oracle is against software patents.  That is
> false.  Oracle was anti-software patents in the early 1990s, but
> now has become a regular acquirer of software patents, engaging
> in the same patenting practices of everyone else.

http://lpf.ai.mit.edu/Patents/testimony/statements/oracle.statement.html
http://www.base.com/software-patents/statements/oracle.html

Did they write this or not ? I believe they did. Did they write something
later that said they changed their mind ? I believe they didn't.

        S.


                      Oracle Corporation - Patent Policy
                                       
   Official policy statement issued by Oracle Corporation. 
   
   Oracle Corporation opposes the patentability of software. The Company
   believes that existing copyright law and available trade secret
   protections, as opposed to patent law, are better suited to protecting
   computer software developments.
   
   Patent law provides to inventors an exclusive right to new technology
   in return for publication of the technology. This is not appropriate
   for industries such as software development in which innovations occur
   rapidly, can be made without a substantial capital investment, and
   tend to be creative combinations of previously-known techniques.
   
   Even if patent law were appropriate for protection of software, due to
   the large volume of recently-granted software patents and the rising
   number of new applications, the current patent process would continue
   to be troublesome for the software industry. Software patent
   examinations are hindered by the limited capability of searching prior
   art, by the turnover rate among examiners in the Patent and Trademark
   Office, and by the confusion surrounding novelty and innovation in the
   software arena. The problem is exacerbated by varying international
   patent laws, which both raise the cost and confuse the issue of patent
   protection.
   
   Unfortunately, as a defensive strategy, Oracle has been forced to
   protect itself by selectively applying for patents which will present
   the best opportunities for cross-licensing between Oracle and other
   companies who may allege patent infringement.
   
Computer Software Policy Issues

   The policy rationale for patent protection in many industries is
   understandable. In exchange for making an invention available to the
   public, inventors are rewarded with a seventeen-year monopoly giving
   them exclusive right to the new technology. In such cases, this
   opportunity to monopolize the commercial application of the invention
   is justified as an appropriate reward given the capital resources
   dedicated by the inventor to the invention, including time and money
   spent in innovation, production, distribution, etc.
   
   This policy, however, does not fit well with the software industry.
   Unlike many manufacturing-intensive industries, the development of
   software requires a minimum of capital investment. Producing and
   distributing a product is simpler, faster, and less expensive in the
   software industry than in manufacturing sectors. New developments
   influential to the software industry frequently emanate from
   individuals and small companies that lack substantial resources.
   
   Software varies from manufacturing in another key aspect. The
   engineering and mechanical inventions for which patent protection was
   devised are often characterized by large "building block" inventions
   that can revolutionize a given mechanical process. Software,
   especially a complex program, seldom includes substantial leaps in
   technology, but rather consists of adept combinations of many ideas.
   Whether a software program is a good one does not generally depend as
   much on the newness of a specific technique, but instead depends on
   the unique combination of known algorithms and methods. Patents should
   not protect such methods of innovation.
   
   The U.S. software industry has evolved to a multi-billion dollar
   industry that leads the world in productivity, and accounts for
   substantial portion of U.S. GNP. The software industry has advanced
   the efficiency of other industries through the proliferation of
   computing and computer-controlled processes. All of these gains have
   come prior to the application of the patent process to software, and
   consequently without patent protection for software. There is no
   justification for a policy that would not only drain capital resources
   (which are better spent on software development) into patent
   applications and other legal fees, and also actually serve to reduce
   innovation by limiting the availability of previously-developed
   techniques.
   
   In sixteen years, Oracle Corporation has grown from a start-up company
   with a handful of employees to the world's third-largest independent
   software producer employing 8,000 people. Oracle filed its first
   patent application in November 1991, not because it felt that its
   software was suddenly worthy of patent protection; it filed that
   application because of concerns that other inventors, afforded patent
   protection by a flawed patent system, might find themselves in a
   position to seriously weaken the Company's competitive edge by
   alleging patent infringement. Even if Oracle had developed a certain
   invention first and could produce the appropriate prior art to prove
   its case, thousands of dollars in attorneys fees and other expenses
   would be spent in defense of its rightfully-owned technology. Oracle
   consequently believes that it must have a patent portfolio with which
   to respond to potential aggressors, so as to settle with them by
   cross-licensing to avoid litigation. Oracle is forced to channel a
   significant portion of its financial resources into patent protection
   of its assets, rather than using those resources in further innovating
   and expanding its computer software products.
   
   Copyright protection for computer software is sufficient to preserve
   the rights of software developers, who rely on the unique combination
   of algorithms and techniques to produce successful software programs.
   Copyright law, including relief from those who copy or distribute
   copyrighted works without permission, in combination with careful
   handling taken to preserve trade secrets, has afforded adequate
   protection to software developers against the losses they may
   encounter from the wrongful use of their software. Compared to
   adequate copyright and trade secret protections, patent protection is
   excessively broad and enormously expensive.
   
Changing The Patent System

   Oracle has recommended that patent protection not be provided for
   computer software or computer software algorithms, for the reasons
   described above.
   
   If software continues to be protected by patent law, however, we
   recommend the changes described in the following paragraphs. These
   recommendations in no way endorse the use of patents for protecting
   software, but rather serve to assuage the existing problems if patents
   must ultimately affect software development.
   
   Patent law should be consistent throughout the world and, if it is to
   be applicable to software, should extend for much shorter periods of
   protection than exist now, unified prior art searching capabilities,
   equal standards of novelty, the elimination of patent rules that allow
   "patent flooding," and identical standards for prior use restrictions
   (bar dates).
   
   The evolution of software moves very quickly. The term of software
   protection should be cut back accordingly, from the current 17 years
   from grant date to three years from application date (the application
   period must be drastically reduced). A balance of fifty years
   protection for direct copying of code would continue to be provided by
   copyright law.
   
   If the patent system is to remain an entrenched part of the software
   industry, then the following changes need to be made:
     * The prior art capabilities of PTO records must be vastly improved
       to confirm effectively the novelty and non-obviousness of software
       patent that is the subject of applications. New classifications,
       as well as an effort to record the current state of prior art
       would be necessary.
     * Because of the unusual speed with which software innovations are
       incorporated into products, the PTO's patent review process must
       be made much more efficient so that it takes no more than six
       months from application to registration. In the software industry,
       if a patent application takes two years to process, the patented
       "invention" is often either widely used or obsolete by the time
       the registration is issued.
     * Examiners skilled in computer science and software programming
       must be trained on the nature of software inventions, and the
       state of existing art. Qualified examiners must be hired and
       retained by the PTO at much higher rates than they are today.
       Compensation rates equal to those provided by industry are
       essential to recruit qualified personnel.
     * The PTO, in conjunction with industry, must establish additional
       committees to clearly delineate the standards of novelty and
       non-obviousness that will be required for software inventions to
       receive patents.

-- 
Stéfane Fermigier, Tel: 06 63 04 12 77 (mobile).
<www.portalux.com>: le portail Linux / logiciel libre.
"Amazon: we patent the dot in .com"