The politics of software over-protection -- moving forward..

[Russell McOrmond <russell@flora.ca>]

On 24 Apr 2003, Simo Sorce wrote:

> The problem is patents on software (and business methods), full stop.
> 
> Other schemes are just doomed to fail.

  I believe we need to recognize that this is a political issue, and needs 
to be handled in that context.  We can be right all we want, but we need 
to get policy makers to listen to us.

  Trying to go from A-->Z instantly is likely to fail, but smaller easily
argued steps will eventually get us to the desired destination and becomes
most likely.  I'll offer two first steps:

  a) Deal with patent market failures through a Fair Use (Fair dealings in
Canada) regime
http://www.flora.ca/russell/drafts/software-patent2003.shtml#ftnt_70
[70] Maureen A. O'rourke, "Toward a doctrine of fair use in patent law", 
Columbia law review, volume 100, No. 5 (June 2000)

   - Recognize patents/copyright on interface standards as a market
failure in the context of this Fair Use regime.  Import all the "why
software interfaces are not eligible for copyright" from the 1991 EU
directive on the protection of software into this Fair Use regime as
obvious reasons why offering protection of software is the lesser public
policy in this context.

   - Recognize Free Software (under qualifying licenses, but the GPL and
BSD licenses must obviously qualify), whether implementing interfaces or
not, as a market failure under Fair Use and allow all implementors using
qualifying Free Software copyright licenses to implement any software
patents (Note: non-free derivatives would not qualify for Fair Use
exceptions, only those under a Free Software license).

  b) Low patent quality is obvious to everyone, including those who
fiercely fight for software patents.  Lets solve this problem -- there are
a wide variety of proposals, with an obvious one being to reverse the
method of payment for examiners to force them to actually do their job
which is to reject patents -- examiners should receive bonuses relative to
the complexity of rejected patents, never receiving a bonus for accepting
them.

  When a patent is uncertain, it should be rejected with the application
then referred to the courts for clarity.  The examination presumption
should be that a patent application is invalid -- a
statutory/useful/novel/unobvious version of "innocent until proven
guilty".

  An important question on patent quality is: who should pay for this
obviously expensive examination process?
  I happen to believe that it should be patent holders and not the general
taxpayer who is not receiving the benefit of this policy.  The public
receives benefit from increased innovation that is theoretically
encouraged by patents, but anything that the innovator has to pay is
passed fairly onto their own customers (and not the customers of firms
that do not take the patent route).  A sufficiently high yearly
maintenance fee (to encourage patents to be released to the public domain
earlier) plus a percentage of the royalties should be able to make the
patent system pay for all the relevant expenses (patent offices, patent
trade negotiators, anti-trust enforcement, etc)





  I do not believe that these suggestions should be controversial except
in the case of some extremists who want tax handouts and protectionism of
their monopolies.  Let us put forward reasonable suggestions, and allow
the extremists to expose themselves for what they are.

  Those who support stronger software protection beyond copyright (on a
single program) probably do not recognize FLOSS as a relevant market, so
would not see giving FLOSS a Fair Use exception to be a threat.  In the
case of interface copyright and patents this is a clear case of incumbent
monopolies trying to exclude competitors in an anti-patent way, so should
also not be supported by those supportive of legitimate patents.

  Work on these steps forward, and the increased innovation will be there 
for economists to evaluate in the future.

---
 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/