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

[Russell McOrmond <russell@flora.ca>]

On Sun, 27 Apr 2003, Xavi Drudis Ferran wrote:

> Yes I think software is information and all information is created equal. 
> You cannot base freedom of expression on what kind of expression are you 
> free to express.

  I have to ask one of Greg's questions then:  Is your disagreement with
the patent system for all subject matter, or the patent system for
specific subject matter?  If specific subject matter, can you articulate 
the traits of that subject matter sufficient to be interpreted properly in 
a court?


  A patent application is a piece of information (printed on paper,
encoded digitally, etc) which describes a method.  It is a kind of
expression where a limited monopoly is granted by governments on the use
of this expression.

  If we complain that a given patent application does not describe a
method, we are discussing patent quality (patents written by lawyers and
not those skilled in the art), not patentability itself.

  There are many ways to look at software.  I call it governance software
in ICT for a reason that I believe applies to ICT.  If the software is
within an industrial process (software that controls a machine that
manipulates nature) then I would think of it in a different way.

  There is a huge difference between a fiction novel, sheet-music, a
patent applications or a marriage license (all just human-readable
information), so why can there not similarly be differences between
different types of software (machine readable information) which express
entirely different types of things in entirely different contexts?


> Guess what is the name of the discipline studying possible
> voting systems, decision making organization and the like?. If I'm not
> mistaken that's "game theory". So it seems hard to distinguish "ICT
> governance software" from games.


  First we need to figure out a way to talk to each other, and then try to
figure out ways to codify the differences in a law.  It is hard for laws
to distinguish electronic/computer "game theory" (or the codification of
the control of visual arts/user-directed motion pictures, etc), "ICT
governance software", or software used in manufacturing processes partly
because those who specialize in these types of software haven't been able
to articulate it either.

  In this forum I have read largely "all or nothing" scenarios, putting
each camp into an immovable situation -- each has chicken-little "the sky
is falling" emotions which mean that there is no possibility of productive
dialog.

  I question whether these different communities have ever tried to come
together to find out if they are talking about different subject matter,
and articulate these lines between different subject matter (non-software,
and different subject matter within software)?



  If a process is patentable, and components of that process have 
specialized hardware replaced with standard hardware running specialized 
software, is the process still patentable?
  The US Supreme court says it is still patentable.


  If a board game is not patentable, and components of that game are moved
to software, is the game still not patentable?
  Many members of this list and I suspect a few courts (I don't have
references) have confirmed that it is still not patentable.


  Are either of those decisions false?  Many here say that Greg, the US
supreme court, and other courts are wrong when they said that any type of
software is patentable.  I suspect that there are people who think that
the rulings about the games are wrong.


  I happen to think that at this level the decision making is still fine
(I can live with the Diamond v. Diehr decision, but *not* the State Street
decision), but this points to either a contradiction (software is both
patentable and not patentable at the same time - an uncertainty in law
where the purpose of law is to create certainty), or a recognition that
not all software can be considered the same subject matter for the purpose
of patent law.


  What if an algorithm used in an industrial process becomes relevant to a
game (or the reverse)?  My belief is that when an algorithm is taken out
of the context of its subject area, that it should be re-evaluated in the
new context.  Software in a game should never be patentable regardless of
the origins of the method, including if the method originated within an
industrial method.  Moving the other way is unlikely given that the game
would be prior art against filing a patent on the method itself in an
industrial process, but a more narrow patent for the use of that method
within that new industrial process probably would be patentable.



  I believe ICT governance software is entirely different from industrial
methods including software or games, and has very different issues to deal
with.  Who is harmed by a monopoly in ICT is entirely different than in an
industrial process, for all the reasons I've mentioned about communications
rights, as well as all the reasons often given why "software is different"
(barriers to market entry, etc -- something that may not apply to software
in an industrial process).


  There is a large number of software creators in this forum.  What domain
are each of you from?

  I may be guessing wrong, but most of the people here seem to be in the
ICT (Internet/networking, office productivity, etc) or infrastructure
software (operating systems, etc)  domains.  Are we really discussing what
should be the case in our specific domain, or are we really talking about
all domains?


  If you are talking about all software, are you also talking about all
patents?  While it may be hard to draw a line (especially one that will be
interpreted by some of the extremely self-interested patent
consultants/lobbiests, patent offices and patent courts) we either need to
draw a line or decide on an "all or nothing".


  I obviously cannot accept "all" (unlimited patentability), and would be
entirely unwilling to obey such laws if they did exist.  I already
deliberately broke the intent of the USA's DMCA here in Canada and
submitted this fact very publicly to Industry Canada
<http://www.flora.ca/copyright-2001-cmpda-reply.shtml>.  If Canada were to
adopt legal protection for TPM or unlimited patentability I would continue
to very publicly infringe these claimed rights in the ICT field as a form
of civil disobedience.


  On the other hand, I also don't agree with those who want to go
cold-turkey and say "no patentability".  If society decided to abrogate
patent law, it is something that needs to happen very gradually given the
incumbent industrial business models in many fields are entirely dependent
on these monopolies.  Huge changes to government incentives (accountable
direct funding of research rather than indirect subsidization,
protectionism, or monopoly creation) will need to be worked out which will
take considerable amounts of time.

---
 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/