Re: [Patents] The politics of software over-protection -- moving forward..

[Russell McOrmond <russell@flora.ca>]

On Sat, 26 Apr 2003, Xavi Drudis Ferran wrote:

> Sorry, but it looks to me you are so clever you are putting your eggs
> in two baskets. But one is a basketball net, not a proper basket.

  I have my eggs, and you have yours -- we have each put them into
different baskets, and believe the other one has holes in theirs.

  I'm not interested in simply opposing software patents as I don't
believe it will work.  I could get depressed about not believing it will
work and essentially do nothing, or I can try a different approach which I
think will work.

  If I am wrong and a different path works, then I will be very happy.  I
don't care how we get there, as long as we do.  If other paths don't work,
I will be very happy that I'll be part way down an alternative path.

  I'm just one guy -- there are likely others in Canada working on this 
issue that are taking different routes, and I may be wasting my time.  
Then again, maybe I'm not...

> I haven't finished your report (sorry, I know this is unfair) and I
> don't know when I'll be able to, but it looks well meant, well informed,
> but a bit naive.

  The report has an email address at the top, and I am looking for
feedback of the sort you seem to be able to offer.  My experience is
primarily in ICT policy around Free/Libre and Open Source Software, which
has meant much more experience with software interface copyright than
patent (which many software creators here in Canada incorrectly believe we
don't have).  If I had managed to write a perfect paper with the amount of
time I had to write the report, it would have been surprising to all
concerned.

  I am continuing to research, which is a big part of why I'm thankful for
this discussion.  I received copies of two papers from Pamela Samuelson
this week that speak about the patent cases with the CAFC to understand
this better (And yes, Greg, I do expect to agree with those who believe
that the logic of the CAFC is flawed).  I believe that the resulting
public policy is flawed so either the courts interpretation of the law is
flawed, the law is flawed, or both.


(The following articles were likely read long ago by the other 
participants)

"Benson Revisited: The case against patent protection for algorithms and 
other related computer program-related inventions", Pamela Samuelson, 
Emory Law Journal, Volume 39, No. 4, Fall 1990

"A manifesto concerning the legal protection of computer programs", Pamela 
Samuelson, et al, Columbia Law Review, Volume 94, No. 8 (December 1994)

> Maybe. Of course you know Canada better than me. But it wouldn't be
> democratic if there was no way to change statutory subject matter.
> Unlimited patentability is unreasonable.

  I just came from the first-part of an AGM for a group called Fair Vote
Canada <http://www.fairvotecanada.org>.  I can't tell from your address
but you might be from one of those modern Industrialized countries (i.e.
not Canada, USA or the UK) that has a democracy that knows how to count
...

*smile*

  We live in times when politicians are not at all aware of technology
policy issues, and the average citizen is even less aware.  I deal with
creators on the copyright question all the time who's VCR's flash 12:00
and yet want to debate with me about lower-level technical details of how
technology affects their rights.

> You will only delay the solution, by suggesting acceptable non-solutions.
> I find easier to defend solutions that I'm convinced that solve the problems
> than measures that I think sound good but I know won't solve the problem.

  I would rather get part way than get nowhere at all which is what I
believe a flat out opposition to software patents would get us in Canada
right now.  We have the same goals, but are taking very different paths.  
It may be our individual evaluations of the situation, or may be political
realities in our respective countries.  We'll just have to wait and see I 
suspect.

  I wish I could believe that Canada would adopt statutory limits that
exclude information process patents, but I don't believe this is in the
cards in any short term.  I believe that in the longer term we will only
get it if we take some critical steps now to protect alternative models
for innovation (such as FLOSS which is critical in ICT, my focus policy
area) and citizens communications rights (the right to control their own
ICT tools, and this especially means without vendor permission or
license).

---
 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/