[Patents] Bessen & Maskin reply on software patent paper

[Jim Bessen jbessen@researchoninnovation.org]

Thanks for your exposition on the European software patent situation (I am
the first to admit I have only a poor understanding of this or how patents
work in Europe more generally).

But I am not sure you are "unbalanced" on software IP.  This is, of course,
a
rhetorical device. But the point we were trying to make is that there are
generally three points of view: 1.) "stronger patents are always better on
principle" (unbalanced pro-patent), 2.) "software should have no
intellectual property protection on principle" (unbalanced anti, e.g.,
Stallman), and, 3.) some degree of IP protection is desirable but within
limits (balanced); furthermore, this last position is a PRACTICAL matter of
policy, not something that can be determined a priori on principle, rather
something which should be subject to empirical evaluation of performance.
You seem to fall into the last group.

For example, in our paper, we suggest that simple copyright protection might
have been the proper balance for software in the U.S. Similarly, the
European statute (minus the EPO's bag of tricks plus copyright) might be an
appropriate balance for Europe. Or it might be achieved with some of the
policies
suggested by Smets and others (but with which you see problems).

Our point is to remind Greg about which group of extremists he should be
worrying -- the ones in power. However, in our reply I chose a phrase
poorly. The offending phrase should have been (and I have asked Greg to
release
the corrected version):

"Although some Europeans are opposed to INTELLECTUAL PROPERTY FOR software
of any kind, much of what we hear is really a much more balanced view."

The critical issue from my point of view is whether the given IP
policy empirically encourages innovation without undue costs to society.

You argue
> (2) Also there are all kinds of compromise proposals, which are worthless,
>     because it is not anyone with political power who is offering to
>     compromise.  And it is quite difficult to compromise.  There are
>     basically two alternatives:
>
>     (a) restrict patentability to new ways of directly using natural
forces
>         to achieve a result that cannot be validated by pure reason but
>         only by experimentation
>     (b) "restrict" patentability to functional parts of structures that
>         use natural forces

I agree compromise is difficult and unwise in Europe in the short term. But
from a longer term perspective (which we are forced to take in the U.S.),
there are MANY possible compromises that might generate better IP policies
and these are actively discussed in the U.S. legal literature. For example,
Merges argues for a more aggressive opposition system; Scherer argues for a
change in the penalties for patent infringement; others argue for raising
the non-obviousness standard again or to narrow patent breadth. And of
course these compromises apply not just to software, but also to biotech and
business processes and mechanical inventions.

It is true that the Samuelson-Kapor proposal carried no weight, nor do any
of these other proposals except on business process patents. YET! In the
long run the present U.S. patent system will not remain unchanged. The most
encouraging sign is that contingency-fee lawyers are getting into the act,
and they will disrupt large companies more than small (e.g., some of the
same law firms involved in the tobacco litigation). Also, if large companies
exert their patent portfolios too aggressively, I believe they may
experience both legal and political backlash. But to date, the large
companies
have been restrained in exerting their patents. The grassroots movement will
develop here when the huge number of issued software patents begins to
really bite. Then these proposals will carry weight.

In other words, if you lose the present battle, all is not lost. The
battleground
just shifts to one over the practical implementation of IP. However, if
you argue that software patents are wrong on principle, and then you lose,
it will be difficult to build support and continue.