Re: [Patents] newsscan: Software patent limits 'go too far'

[Russell McOrmond <russell@flora.ca>]

  I hope this won't cause us to loop around in circles again ;-)

On Wed, 22 Oct 2003 old.timer@tiscali.co.uk wrote:

> But patents are supposed to be about protecting concepts, regardless of
> any specific implementation.

  Patents are supposed to be an exclusive right on the method of producing
something, not a government protected monopoly the output of the
production process.  It is not the widget that is receiving the exclusive
right, but the manufacturing process by which the widget was produced.

  If you can produce the same widget by a different manufacturing process
(invent around) then the patent is not intended to apply.  There have been
problems with domestic patent laws on this, and when I did my software
patent issues report for ICT branch of Industry Canada
<http://www.flora.ca/patent2003/> one of my recommendations was to change
the burden of proof:

  "In patent infringement disputes, it should be the patent holder that
   needs to prove that the patented technique was used. Currently the
   assumption is that the new product was produced by the patented 
   process"


> If the underlying idea is a patentable invention, why should others be
> able to steal that invention if they use a computer program, but not if
> they use any other means?


  If the underlying method is a patentable technique, then the existence
of a computer program within that method does not change the patentability
of the method.

  What we are discussing here is not whether software within a patentable
method changes the patentability of the method, but whether or not
software alone outside of a manufacturing technique should be considered
patentable.

  These are two extremely different concepts, and is at the heart of the
extremist expansion of patents outside of manufacturing techniques to
information processes (and likely beyond if we don't stop it here!).

  If software is used within a manufacturing method (say to control
robots) then the method as a whole including the software should be
patentable.  This should not grant exclusive rights via patent law on the
software itself if used outside that manufacturing method.

  If you are programming an FPGA and using that software/FPGA inside a
production line, then the existence of the software/FPGA does not make the
production line unpatentable.  The reverse is that the use of an FPGA
within a patentable manufacturing technique does not magically make the
FPGA itself patentable.




  Once you stray outside of manufacturing methods used in the production 
of manufacturing goods into information process patents you end up with a 
whole slew of entirely new issues.  From there you end up being able to 
receive exclusive rights on a whole slew of things which simply offers no 
public policy benefits, but considerable harm:

  - Software that governs the operation of a computer is considered an
information process.

  - Today business models that use that magical software bullet are
considered patentable information processes, and it won't be long until
the requirement that there be software is lifted given how quickly the
requirement to be a manufacturing process was lifted.

  - General methods of organizing people will eventually become
patentable.  What really differentiates Roberts Rules as normally used to
organize people and Roberts Rules codified in software?

  - Processes by which consensus and consent is built in a group will
become patentable (Manufacturing Consent?).  Religions will become
patentable (rather than the current case where unlimited patentability
seems to have become a religion ;-).  Probably even language (methods of
communication) will become patentable.


  Where does it stop?

  Well, I for one believe the barrier should be whether the method is a
manufacturing technique for the production of a tangible good.  Patents
should not regulate businesses outside of the manufacturing sector, and
software "per say" (meaning software alone, separate from a manufacturing
technique in the manufacturing sector) is outside the manufacturing
sector.  Patent law should not even come up at all in the lives of private
citizens in their private homes.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/