Re: [Patents] pooling patents for progress and protection

[Russell McOrmond <russell@flora.ca>]

On Fri, 3 Jan 2003, Gregory Aharonian wrote:

> >I don't know the correct way for fighting software patents.
> 
> Easy solution - help patent offices give more time and prior art resources
> to their examiners so that the patent examiners can issue far fewer but a
> much higher quality software patent.  I have long argued that over 60% of
> thes issued software patents are invalid.

  You argue that it is 60%, others argue that it is 100%.  I am in the
latter group and simply do not see the merit to granting patent monopolies
in the software or business model fields.

  The simplest argument I have made is based on the idea that the 'term'
of copyright and patents should be tied to the cost of development and
speed of innovation in a given field, and to stop trying to treat all
these extremely different fields identically.

  While a novel may get 40 years of copyright (75 and 95 years past the
morbid public benefit received by the death of an author is insane),
software should be somewhere near 4 to 10.  Where a patent to create the
physical aspects of a piece of computer hardware may get 20 years, the
software components (even if embedded in programmable hardware) should get
2 to 5.  Once the time to apply for a patent is greater than the patent
term, then that form of patent should simply not exist.

  Beyond the term argument, there are so many other arguments (economic,
moral, and otherwise) that can be made.  You can argue about 60/40 all you
want, but even that 40% doesn't serve the public interest and the purpose
of government public policy (especially government granted and enforced
monopolies) should be to serve the public and not special economic
interests.



  This being said, I believe that people in this list are looking at the
pool idea wrong.  It is not admitting that opposition to software
patenting has failed, but creating a tool for those with adequate
financial resources to come together and make software patents less useful
and thus less likely to continue to exist. If you can't sue anyone of
significance for patent infringement without being counter-sued, the
incentive to patent in the first place is considerably diminished.

  Your suggestion of having more prior art filed is also useful, and was 
something I included in my Innovation Agenda submission to the Government 
of Canada.  I suggest not only the filing of prior-art, but also a new 
test called 'state of the art' where a technique that may have seemed 
'unobvious' in the past can be re-tested. 
  http://www.flora.ca/innovation-2002.shtml#ip-policy

  If written today, I would also add in the issue of self-replication such
as exists in bio-patenting. If it can reproduce on its own, then a patent
for 'one technique' to arrive at a given 'invention' should simply not be
patentable.  This would deal with many of the Monsanto-focused
international food-security issues that patenting has created.



  Ideal is if these issues are dealt with in public policy not serving
special economic interests, but it would be nice to see the private sector
serving the public (and their own longer-term) interests when specific
governments don't seem capable of doing so.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
 Any 'hardware assist' for communications, whether it be eye-glasses, 
 VCR's, or personal computers, must be under the control of the citizen 
 and not a third party.   -- http://www.flora.ca/russell/