[Patents] Openness and success

[phm@a2e.de (PILCH Hartmut)]

>  Software patents have received a great deal of attention in the
>  academic literature. Unfortunately, most of that attention has
>  been devoted to the problem of whether software is or should be
>  patentable subject matter. With roughly 40,000 software patents
>  already issued, and the Federal Circuit endorsing patentability
>  without qualification, those questions are for the history
>  books. The more pressing questions now concern the scope to be
>  accorded software patents.

A very unfortunate way to start an article.  If the Federal Circuit does
something wrong, then Congress can force it to correct that.  If Congress
fails to do that, then Congress will probably also fail to implement those
more complicated proposals that the authors work out in their article:

>  ... In particular, we argue for two sorts
>  of new rules in software patent cases. ...

[ complicated and probably TRIPS-violating rules deleted ]

>  ... We suggest that if these doctrines
>  cannot be read broadly enough to establish such a right,
>  Congress should create a limited right to reverse engineer
>  software containing patented components for research purposes.

These authors commit the same error as Lutterbeck, Horns et al:  in order
to make people listen to their grand compromise proposal, they first try
to dismiss more basic solutions as unfeasible.  By doing that, they also
undermine their own proposal.

--
Hartmut Pilch                                         http://phm.ffii.org/
Protecting Innovation against Patent Inflation      http://swpat.ffii.org/
89000 votes against software patents            http://www.noepatents.org/