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Re: [d@DCC] RE: eWeek Supports W3C Software Patents Stand!
From: Russell McOrmond <russell _-at-_ flora.ca>
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/ -- For (un)subscription information, posting guidelines and links to other related sites please see http://www.digital-copyright.ca
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