GregNews: Judge Posner attacks software/business patents

[PILCH Hartmut <phm@a2e.de>]

GregNews throws the usual "not worse than in other industries" and
"not proved by statistical data" argument at Judge Posner.

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!20021126  Judge Posner attacks software/business patents

U.S. Appeals Court Judge Richard Posner recently gave a talk in which he,
while mostly criticizing copyright extension, also criticizes the Court
of Appeal of the Federal Circuit and the PTO.  His patent observations are
a bit naive.  For example, the article (fully listed below) has him saying:

      Posner said that disturbing growth in overly broad business
      method patents is due both to the Patent and Trademark Office
      and a special federal court that hears patent cases.  

      "A specialized court tends to see itself as a booster of its
      speciality", Posner said. "Patents are clogging retail commerce
      on the Internet, and software (patents) in particular are
      apparently impediments to software development."  

Let's look at three naive/unsubstantiated assertions:

1) ".... OVERLY BROAD BUSINESS METHOD PATENTS ...."
    This comment reflects an complete misunderstanding of patent quality
(will someone sponsor a judges seminar where people like me can present
empirical data on patent quality - for too many years judges have been
not provided with such data!!!!).  For the most part, business method
patents are no more broader than software patents in general (probably a
bit better with the PTO's double-eyeball program), especially since most
are essentially software applications.  But this is part of a much larger
problem with these subsets of electronics patents - 80% of all issued
electronics patents cite no non-patent prior art from any of the world's
engineering societies (IEEE/ACM/IEE/SPIE, etc.).  THAT is the statistic
judges should be quoting if they are serious about patent quality. And
if business patents are really that broad, they would be having a
significant economic impact on business.  There is no economic data to
support such an assertion.

2) ".... PATENTS ARE CLOGGING RETAIL COMMERCE ON THE INTERNET ...."
    Huh? Bad business models, idiotic investments, inconsistent state
and federal tax policies, etc. - these are all plaguing the growth of
electronic commerce on the Internet - NOT PATENTS.  Sure, there is the
usual patent assertions and litigations going on with ecommerce patents,
but the levels and positive/negative side effects are little different
from levels and effects in other industries.  There is no economic data
to support his clogging assertion.  Patents did not kill petfood.com.

3) ".... SOFTWARE (PATENTS) IN PARTICULAR ARE APPARENTLY IMPEDIMENTS
         TO SOFTWARE DEVELOPMENT ...."
    Again - where is the data for such an assertion?  I look at the
continual flow of new software ideas in journals, conference proceedings,
books, new products, shareware/freeware, and see NO evidence that such
efforts are being slowed down by anything other than general economic
considerations (like the dotcom bubble burst, market downturn, etc.)
Also again, there is the usual patent assertions and litigations going
on with software patents, but the levels and positive/negative side
effects are little different from levels and effects in other industries.
There is no economic data to support his assertion.  And I don't like to
see an influential judge using "apparently".   SHOW ME THE DATA!!!!


There is nothing special or holy about software and business methods - 
they are just the latest applied sciences (the technologies of mathematics
and economics respectively) to be fit into the patent system, with the
usual levels of licenses and litigation and problems with quality.
Judge Newman's observations about business methods still stand - there
are no lines to be drawn because that is not how businesses operate.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608   
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
130,000 signatures against software patents      http://www.noepatents.org/