[d@DCC] Patents Have Their Place, says a patent lawyer.

From: Russell McOrmond <russell _-at-_ flora.ca>
To: free_spectrum (at) ziffdavis.com, <lroberts (at) kilpatrickstockton.com>
Date: Fri, 1 Aug 2003 15:49:09 -0400 (EDT)

Re:  http://www.eweek.com/article2/0,3959,1204907,00.asp

  There are none so blind as those who receive considerable financial
benefit by not seeing. It is no more surprising that a patent lawyer would
be in favor of software patents than it would be for a software developer
being in favor of software, or a musician being in favor of the existence
of music.  This articles author is a representative of one of the most
extreme special interests in this debate, and his personal opinions on
this matter need to be understood in this context.

  I am a software developer that spends a considerable amount of time
involved in analyzing and commenting on the public policy aspects of
technology law.  My view are very different than his.

  He wrote as if small software developers receive benefit from software
patents.  Pretty much every study indicates exactly the opposite: that
large firms hold patent portfolios that they cross-license with other
large firms, and use to entirely lock out any small developer.  A small
developer tries to survive in a world of legal land-mines, and stays in
business only until some larger firm decides they wish to close them.

  In my case I am a small developer that has joined the "copyright pool"  
known as Free/Libre and Open Source Software (FLOSS)
<http://www.flora.ca/floss.shtml>.  Software patents are legally
incompatible with our copyright licenses, and incompatible with our
methods.  Our part of the software industry questions the assertion that
patents are needed to protect innovation given our methods are
co-dependent with the Internet itself, and have been the source of
considerable innovation.  To suggest that FLOSS is not innovative is to try
to suggest that the Internet is not innovative, an idea without much
credibility.

  He attempts to assert, without backup evidence given much of the
software industry is proof to the contrary, that "copyright protection is
not sufficient protection for software innovation". I assert that
copyright (limited to an expression of a work, excluding computing
interfaces) protects innovation in both software and business models by
allowing multiple business and development models to co-exist and compete
on implementations.  

(For more of the free market competition our community advocates, see:
http://www.sincerechoice.org/ )

  Information process patents, including software and business model
patents, do not allow for this free market competition or innovation.  
FLOSS includes many new innovative demand-side economic models to fund
software which simply could not exist in the "one size forced on all"
model this article advocates.

  Governments should not be in the business of micro-managing the private
sector to the level of choosing winning and loosing development methods
and business models. Thinking of software as a manufactured good, similar
to hardware, is extremely narrow and outdated.  Software is intangible,
naturally non-rivalrous, and does not have the same limitations as
tangible and naturally rivalrous hardware.  Other than government
micro-management there is no reason that all software must be thought of
in terms of "manufacturing", or sold via per-unit royalty payments.

  Some software exists in the political arena, and must be thought of as
being the laws that govern a computer. Governance software that controls
Information and Communications Technology (ICT), automates government
policy, or electronically counts votes, should not be thought of as
something that should be bought any more than politicians should be
thought of something that should be bought.

  I recently presented a software patent report for ICT branch of Industry
Canada <http://www.flora.ca/patent2003/>.  This report included the
following quotation from the League for Programming Freedom, a coalition
of software creators which self-defines as "an organization that opposes
software patents and user interface copyrights."[34]

    Few programmers and entrepreneurs believe that patents are necessary 
    for their profession. Instead, the impetus for patents on algorithms
    and techniques comes from two outside sources: managers of large
    companies, who see patents as a means for triumphing over their
    competitors without having to develop superior products, and patent
    attorneys, who see the potential for greatly expanding their business.
    ...
    Today, most patenting by companies is done to have something to trade 
    or as a defense against other patent-infringement suits. Attorneys
    advise that patenting software may strengthen competitive position.
    Although this approach will work for large companies such as
    Microsoft, Apple, and IBM, small and even mid-sized companies can't
    play in their league. A future startup will be forced to pay whatever
    price the giants choose to impose[35].

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Recently at Ottawa Linux Symposium: July 23rd-26th
 http://www.linuxsymposium.org/2003/view_abstract.php?talk=193
 Hosting "Birds of a Feather" for http://www.goslingcommunity.org

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