Re: [d@DCC] RE: eWeek Supports W3C Software Patents Stand!

From: Russell McOrmond <russell _-at-_ flora.ca>
To: General Discussion <discuss (at) digital-copyright.ca>
Date: Tue, 17 Jun 2003 14:03:45 -0400 (EDT)

On Tue, 17 Jun 2003, Chris Brand wrote:

> >Copyright protection should be enough.
> 
> This is what always gets me when thinking about software patents.
> Is there anything else that can be both patented and copyrighted ?
> Seems to me that the intent is that there should be no overlap between
> "things that can be copyrighted" and "things that can be patented".

  I believe the issue is that there is a difference between the intent of
the public policy, and the implementation of the policy.  Patent offices,
patent courts, patent consultants, large monopolistic patent portfolio
holders, and other such extreme special interest groups have stretched the
interpretation of "what is an invention" beyond anything that is remotely
reasonable.

  These groups try to treat patent policy expansion as a legal issue of
enforcement (The "stronger is better" rhetoric), when all forms of
intangible property rights are pure economic policy that must be created
and implemented to serve economic public policy purposes.  Economic
analysis and sound public policy must take over from the rhetoric of
enforcement.

  We have a clear case of a group of foxes left to mind the hen-house, and
legislators seeking sound economic public policy need to step in and stop
the carnage!


  This is my conclusion from doing the software patent report for Industry
Canada <http://www.flora.ca/russell/drafts/software-patent2003.shtml>
(Note: working on new draft for final delivery to client -- please send
feedback).

  There are some gray areas which have been exploited.  As an example, if 
an industrial technique includes software, does that make the technique 
un-patentable?  Most people in this area would agree that the existence of 
software as part of an invention does not render that invention 
unpatentable.

  What if that software is taken out of the context of the invention, and 
used elsewhere such as on a generic computer?   This is where the patent 
lobby has stretched things to the point where the system has become 
extremely broken.


  There are so many ways that software is entirely different from
traditionally patentable inventions:

  You can start from the separation between the product that is produced
(the 'widget') from the patentable process that is used to create that
product.  With software, the process is the product, and that process is
then sold and used entirely outside of an industrial production
environment (such as in a citizens private home).

  You can then go onward to how often single industrial processes can
produce many products, but with software you have an extremely large
number of 'methods' used within a single application.  Given the expense
required to negotiate this large amount of licenses for any useful
program, software patents essentially exclude all software creators other
than the large companies with large patent portfolios to cross-license.

  Then we can talk about the quality of patent examination where even 
those consultants part of the patent lobby will admit that more than 60% 
of the software patents in the USA would be found invalid if simple 
testing of statutory, useful, novel and unobvious were actually conducted.  
Currently in the USA, examiners are paid partly by the patents accepted 
and thus there is a financial incentive to accept poor quality patents.

  Then we can talk about the FLOSS software economy which by its very
nature (and definitions by the FSF and OSI) are incompatible with software
patents except in the case of a royalty-free license.  I am often warned
not to put too much emphasis on FLOSS in software patent discussions, but
I still hold both the hope and the belief that FLOSS based business models
will take over the entire *distributed* software industry except those few
niche markets with small customer bases where royalty-based business
models make sense.

---
 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/

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