Back to the basics of patents... (Was: Re: [Patents] OT? : Patent for games...)

[Russell McOrmond <russell@flora.ca>]

On Wed, 5 Mar 2003, Gregory Aharonian wrote (sorta) sarcastically (I 
assume):

  maybe [*] is so important for human evolution that no monopoly should be
  granted for it.


(and around and around we go...)

  The assumption that if patents apply or not in one field, that this
applies to all fields, doesn't make sense to me.  There are a wide variety
of justifications for market monopolies in the form of patents, but
regardless of which one you subscribe to it must be tested for each type
of 'invention'.


Side note:
   I am looking for all the arguments in FAVOR of Software Patents.  
   It is trivial to do a search online to find the arguments against, but
   in discussing this topic it would be nice to see some of the other 
   side.

   Protecting existing investment [for those not thinking about future
   creations -- like managers and VCs], "because everyone else is and I 
   need to defend myself", and "because my lawyer/accountant/manager/etc 
   told me to" seem to be all I can find.  I can't find anyone arguing
   that software patents "promote the progress of science and the useful 
   arts".


  If the purpose of patents are to create stability to encourage/protect
economic investment, then this assumption needs to be tested.  Maybe this
argument applies to medicines, but not to software.  I know that my
feelings about drug patents are not the same as my feelings about software
patents, largely because the question of 'interoperability' and the
diversity of the size of the players are very different.

  I am not concerned about protecting volunteer drug researchers in their
basements just 'hacking away' at some 'cool plants' they happen to have 
down there.  In fact, I would rather that this type of behavior not be 
encouraged for a number of less mild drugs.

  On the other hand I have observed a lot of innovation happening with
freeware, shareware and free software which are all areas where patents
are clearly harmful.  These volunteers or academics have no money to file
a patent, no money to defend against a patent -- they go directly to jail
as didn't even collect $200.  Their time investment in creating software
is not protected by copyright because patents trump copyright, and this is
an obvious disincentive for creation.

  Do patents protect investment in software, or create uncertainties?  If
you are the person holding a large patent portfolio you will claim it
protects (incumbent) investment.  If you are a startup trying to get
investors then you will recognize that it creates uncertainty and reduces
your possibility of getting investment.  The copyright protection afforded
to that startup for their possibly considerable investment is trivially
trumped by a (possibly invalid) software patent, including a software
patent that the startup was unaware of (i.e. re-invented independently).


  If the justification-of-choice is to "promote the progress of science 
and the useful arts" then this also needs to be tested.  Is this the case 
for software?  I have yet to see anyone successfully make this case, and 
most of the literature I have seen on this point in exactly the opposite 
direction.



  We then need to get to practicalities of administering the system. I 
doubt there will be an argument to end all arguments on patents, and we 
will be left with some winners and some losers.  One thing we can say is 
that nobody believes that 100% of software patents currently granted by 
the USPTO are legitimate.

  I have seen you (Greg) suggest that 60% are invalid, with your chosen
remedy being to 'bust them' via patent litigation and demonstrating the
invalidity of the patent (primarily the novelty requirement, finding prior
art).

  Let us assume for the moment that your numbers are correct, as I see no 
reason not to believe that 40% of current software patents are valid 
according to current patentability rules in the USA.

  How many of us can afford this service?  Is time spent trying to ensure
that only the valid 40% remain in the system worth the huge cost to the
industry to constantly be expending resources 'busting' the 60%?  How many
benefit from that 40% compared to the lost productivity caused by the
resources spent on the 60%?

  Is it realistic to expect any patent office to just "get their act
together"?  Human nature suggests that they will want to become more
relevant to the economy, so even beyond the other examination problems
(getting paid to grant patents rather than paid to provide audited
documentation on grant/denial) we have a built in bias.

  You can never solve a problem in the same mindset that created it, so I
truly doubt that the patent offices are where the solutions to the patent
crisis will be found.


  Beyond the "just say no" answer, we have many proposals put forward to
take the sting out of software patents.

  Some of these include ensuring that the entire collection of Free/Libre
and Open Source Software automatically become part of all patent offices
searches for prior art.  Will this solve the problem?  I am not a patent
examiner, but I know that I can't keep track of all the Free Software that
is being developed even in the narrow parts of computer software that I
follow.

  While patents are intended to divulge the invention so that someone 
"skilled in the art" can follow the procedure, this appears to be rare 
with software.  Patents aren't written by people "skilled in the art", but 
are written by lawyers which makes the job of the patent examiner (even if 
they were skilled in the art) even harder.



  My own favorite is to create a "Fair Use" doctrine in patent law that
would exclude Free/Libre and Open Source Software from patent infringement
claims, leaving the software patent battle to be only between the
royalty-based businesses.  We let them fight this out, expending more and 
more of their business resources on patent litigation -- all the while we 
out-innovate that entire sector out of business.



  I do believe that suggesting that the costs of software patents, both to
creators and to the patent office, far out weigh the benefits is a very
valid position to have.  While the "Fair Use" concept does have an added
side effect of promoting Free Software against proprietary software, it is
unfortunately an unlikely option.  The "just say no" answer is the next
best thing.





By the way:  I gave the old "software is just mathematics, and
mathematical methods cannot be patented" argument a spin around the block
(Meaning, I thought about it for a while ;-).

  I (unfortunately) had to agree with those who don't buy this argument.  
I thought about how Unified Modeling Language (UML) is being used to model
many real-life processes, many of which are patentable, and didn't see how
UML could be distinguished from software.

  This isn't to say that I believe software should be patentable, just
that the "mathematical methods" argument isn't a reason I would give.  I
believe that adequate economic, market and public policy analysis will be
what gives us the answer to this question.  Direct comparisons between
software and other fields where patented 'inventions' are claimed or
excluded isn't going to offer us much.


  And no, Greg.  I am not writing the above to get back on your private
list after you removed me for disagreeing with you in this list.  I am
very serious about learning about software patents, and am interested to
hear all sides of the debate.  My work in software public policy is being
taken serious enough that I have been hired by a Canadian government
department to do a report on software patents.


> Greg Aharonian
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 Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
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