Ed Burnette
Broken
Needed
Steven Shaw
Best Argument: Needed
Closing Statements
Just say no to software patents
Ed Burnette
Suppose, as Steven argues, that intellectual property can be defined and described, and needs to be protected. Can it be Patented? I would argue that a Patent is the wrong way to protect such a thing, if it even exists. Copyrights are used for other products of the mind such as music, eBooks, and newspaper articles. To me, it makes the most sense to apply copyrights to software as well. Copyrights offer plenty of protection by themselves.
Can software patents be fixed? Over the years, we've heard many ideas such as shortening patent expirations, crowdsourcing prior art, making lawsuits less expensive, and more. My answer to all this is: Why bother? We can have innovation without patents. Some of our greatest innovations such as the World Wide web were not patented (thank goodness!). Patents are a drag on innovation, because they incentivize non-productive behavior. We'd be better off without them.
Software is more like a machine
Steven Shaw
We've covered a lot of ground, but I want to circle back to what I think is the fundamental misunderstanding of software patents.
Software is not the same as mathematical formulas or literary text. Software is much more like a machine. A typewriter is no more of an invention than word processing software -- I'd actually argue that word processing software requires considerably more inventiveness. If a person comes up with an innovative new idea, the idea should be patentable regardless of whether the implementation is via a traditional mechanical machine or a virtual software machine. Once you understand the nature of software in this way, software patents make perfect sense.
There are improvements that can be made to the patent system, but they are the same types of incremental improvements every large system needs. Scrapping the system is just a bad idea.
Not the people's choice
Lawrence Dignan
Steven Shaw is not a popular guy. Why? He's writing that software patents are necessary. Oops. Ed Burnette made a compelling case that copyright law -- rather than patents -- should hold sway over software. However, Shaw's argument held together well. His bottom line: "There are improvements that can be made to the patent system, but they are the same types of incremental improvements every large system needs. Scrapping the system is just a bad idea." I'll give Shaw a narrow victory. The crowd apparently disagrees.
Talkback
software patent
You need example? Mr Kane Kramer.
Patenting software is like delete every word from a dictionary after the word was said by someone. I can come up with an ideas independently form previous knowledge of a patent, I even can develop it differently, but if someone already patented this idea, I'm a dirty copier or steal the work of others?
to promote progress, for a limited time
In other words, it's precisely a back-to-original-intent that will give us an effective way to reform IP law: shorter time limits, and policies designed to encourage rapid disclosure and development of ideas that build on properly narrowly-defined ideas. Blocking patents are inherently wrong, as are very long-term monopolies. For software, these principles would yield some protection, but quite narrowly defined.
Need reform: Patent Prime Directives
This Temporary Monopoly was never meant to create durable intellectual property to be used by patent trolls or to suppress competition. Derivative products and copying of ideas were viewed as a natural part of innovation and market competition. Patent system was not meant to be used against that process, but rather to encourage proliferation of original inventions (which would naturally give rise to more competition and further innovations).
The problem with the original patent system is that it lacked clear “Prime Directives” never to be violated as technology grew in complexity and sophistication. As a result, patent system through decades of neglect has been grossly misguided and distorted by the IP profession, misunderstood and often unjustly applied by legal system which may see the tree but not the forest (i.e., US Judge Lucy Koh), neglected by the government and its agency to evolve it to fit the changing world, and grossly misused by predatory corporations (who do not even need the protection in order to innovate) to monopolize or suppress competition.
If the government is unfit to govern sleeping at the helm and does not see the urgent need to evolve ancient patent system (among many other issues), how are we to bring about the changes required without necessarily having to overthrow the government (in the style of Arab Spring)? Relying on the intelligence and wisdom of our courts to uphold original goal of the patents (i.e., US Judge Richard Posner) is not the most reliable path, but currently our only hope.
I would like to suggest following reforms to the patent system.
Definition of a Patent
- Temporary Monopoly: Patent is a temporary protective rights, not intended to create a durable intellectual property.
- No Diagram Patents: Patent shall protect the executed, unique and specific functional design or engineering of the invention, but not the form, function or concept of an invention defined solely by process/abstract diagrams without executed engineering/functional design/codes.
Patent Prime Directives (PPD)
- Use It or Lose It: Patent shall be put to beneficial commercial or public use within x years (e.g., 3 yrs for software, 7 for mechanical devices, and 10 for all others including pharmaceuticals, etc) of the original filing date in order to be valid.
- No Damages, No Claims: Patent shall not be used to extract financial benefits from competition in the absence of realized & enumerated damage.
- No Trolls: Patent may not be transferred from the Inventor to a third party for the purposes of asserting financial claims against competition without implementing beneficial commercial or public uses.
- No Anti-Competition: Patent shall not be used for predatory or anti-competitive purposes. As such, patent shall not be used as bullying/offensive tools against competition and derivative innovations.
Special Conditions Against Abuse
- Willful or repeated violation of Patent Prime Directives invalidates the offending patent as of the original filing date.
Burnette's "More mental than physical" distinction fails
In the 1930s, Alan Turing showed that any algorithm can be expressed as a Turing Machine, and that any Turing Machine can be emulated on a Universal Turing Machine (i.e. a computer). With some further thought, this implies that any machine or process is equivalent to a TM (a computer program) and vice versa.
While it took fifty years for the implications of this to filter through to patent law, now that it has done so, there is no going back. In fact, the implications of Turing's work go beyond software patents, because there is no real difference between creating mathematical theorems, algorithms and software, so results in maths ought to be as patentable as any machine or process.
Burnette hints at a rebuttable to this point of view, writing:
[quote]
Of course, there are those who will try to game the copyright system too, but at least they can't get inside your head and try to control your ideas and insights.[/quote]
What goes on inside one's head is irrelevant and (for now) beyond anyone's control. We don't need patent or copyright laws to guarantee "freedom of thought"; these laws are only interesting when someone wants to exploit thoughts for financial or material gain.
So long as we allow patents on pharmaceuticals, processes and machines, there is no logical reason for rejecting software patents, patents on algorithms or even mathematical results.
We must allow all these patents, or none of them.
Respect the law
Needed and Broken
Whether a system is needed is independent of whether the system you have is broken.