[Patents] WIPO Patent Agenda consultation

[jtobey@john-edwin-tobey.org (John Tobey)]

On Sat, Dec 08, 2001 at 02:51:00PM -0500, John Tobey wrote:
> > > >   http://patentagenda.wipo.int/
> > >
> > > My comments follow.
> > 
> > Did you submit them to WIPO yet?
> 
> Not yet.

The attached version is the one submitted.

-- 
John Tobey <jtobey@john-edwin-tobey.org>
John Tobey <jtobey@john-edwin-tobey.org>
8 December 2001

I applaud WIPO for this openness to public comment.  The web pages at
http://patentagenda.wipo.int mention public posting of comments, but I
do not see a link to them.  I hope that one will appear there soon.

I am a professional and recreational computer programmer, and I am
concerned about the possible enforcement of patents against software
use, creation, and distribution.  I may not be qualified to discuss
all of the topics in your Request for Comments, so I will restrict my
comments to software applicability.  I have studied this area rather
closely for the past two or three years and believe I can contribute
to this discussion.

I do not assert that WIPO treaties can or should specify whether
countries enforce patents against software.  I have not studied WIPO
closely enough to know whether that is its goal or mandate.  My
impression is that WIPO seeks patent uniformity and expansion in all
spheres, and I fear that a push towards generalization will include
areas where patentability is inappropriate, notably software.  Since
the present discussion is intended to have wide-ranging scope, I
consider my concerns well-placed.

Much has been published about the pitfalls of "software patents" and
why patenting "software" may retard innovation and do the public more
harm than good.  A quick Internet search will turn up thousands of
opinionated pieces, almost all opposing "software patents".  I assume
that you have access to this information, and I will not repeat it all
here, but I refer you to some sites:

    http://www.PetitionOnline.com/pasp01/
    http://www.researchoninnovation.org/patent.pdf
    http://www.eurolinux.org/news/cpat01B/
    http://swpat.ffii.org/vreji/papri/wipo-splt01/

Most of the anti-software-patent opinion comes from software
professionals and students, since it is we whose freedom is most at
stake.  Often, our arguments seem ignorant and unrefined in comparison
to those of the IP professionals who study the problem full-time and
often favor patent protection for software.  However, that is not
universally true, and the sheer volume of protest against patent
expansionism indicates a phenomenon which we all must strive to
understand.

It has been argued that the term "software patent" is ill-defined,
since many patents may be applied to both software and hardware
implementations of the same ideas.  When the average programmer thinks
of "software patents", he has in mind things like Amazon's one-click
patent, which is so elementary and devoid of useful information that
even an unobfuscated statement of it would not merit publication in an
online forum.

   Point 1. In fields where patents make sense, researchers and
   inventors can improve their work by reading about specific patents.
   In fields such as software, reading about patents is a waste of
   development time, so it is done only for legal or political
   purposes, never technical ones.

My definition of "software patent" is not a patent but the enforcement
of a patent against certain activities involving software.  I
therefore prefer the terms "software patentability" and "applicability
of patents to software".  To criticize patent offices for granting
low-quality patents misses the point.  I can accept the so-called
software patents being issued as long as they do not curtail my free
speech.  Being a programmer and free-software aficionado, I take
freedom of speech to include some things that others might not think
of.

   Point 2. No patent should prevent anyone from doing things with
   information, such as copying, transmitting, manipulating,
   augmenting, interpreting, or running it using programmable
   hardware.

This may already be the understanding of some courts and the intent of
lawmakers.  If this point were universally conceded and codified, I
think that the controversy surrounding software patentability would
abate.  Of course, it does not mean that all copying and so forth is
permissible.  I just want these activities left to copyright,
obscenity laws, etc., and out of the scope of patent law.  After all,
the patent system is founded on the principle of distributing useful
information.

It is argued that the combination of general-purpose hardware and
software programs produces a special-purpose machine.  Special-purpose
machines are the province of patents.  While this idea has
philosophical appeal, it is no reason to enforce patents against
software, and it makes little practical sense.

   Point 3. Writing and copying programs is not an act of manufacture.
   Distribution of software differs fundamentally from distribution of
   material goods in that it need not transfer matter and its cost
   approaches zero.  This distinction can and should be made in the
   patent system.

Writing programs is an act of creativity, like writing letters.
Maintaining important software systems is more like surgery than like
hardware manufacture or distribution.  Patents should be unenforceable
against uses of surgical techniques and programming algorithms.

Thank you for your time.