Original intent and open source patents

I happen, in this case, to be making the conservative argument, the argument of original intent.

Back when I was a conservative, in the 1970s, one of the big buzzwords was the idea of "original intent." (The illustration comes from a church lecture series.)

That was, instead of reading the Constitution in light of present day circumstances, judges should look at the "original intent" of the Founders, and rule on that basis.

Here's what I found in the Constitution. It's part of Article I, Section 8, detailing the powers of the Congress:

The Congress shall have Power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Let's look at that again. The purpose of patents and copyrights is "to promote the progress of science and useful arts," and to secure "for limited times to authors and inventors the exclusive right" to writing and discoveries. I wrote about this more extensively (and, deliberately, more controversially) on my own blog yesterday.

This becomes relevant today because of news that an outfit called FireStar Software has charged JBOSS with patent infringement, claiming a patent on linking databases with object-oriented software.

Let's leave aside the merits a moment, however, and look at this from the point of original intent.

Do software patents like this encourage the creation of new ideas and inventions? Does a law that lets FireStar pick on an open source outfit (as opposed to, say, Oracle) create incentives for invention, or just for lawyers?

I'll admit. I'm a big advocate of reforming copyright and patent law, on the side of people and companies who submit their work to the discipline of the market. I want shorter copyright terms, more rigorous examination of patent claims, and an end to patents on math (software consists of algorithms) and business methods (which can't be gotten around, as most patents can, through new invention).

But that's just me. I happen, in this case, to be making the conservative argument, the argument of original intent. Sometimes that's the right argument to make.

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