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« Copyright Misuse | Main | The Purpose of Copyright »

September 10, 2004

Comments

Interesting post. With regards to the criticism of patent law, I'm fairly certain that Argent isn't a lawyer. I'll agree that patent law needs reform in the software realm due to the sticky nature of code, but anyone who thinks that patents last too long obviously has never attempted to get a patent on a drug. Argent's comment at that site received some interesting feedback on the current state of patent law, and I even agree with some of it, but for people to question the usefulness of the patent system is pretty outrageous. The policly behind issuing patents was so evident early on that the drafters reserved the right to patent in the Constitution itself. For some reason, people fail to recognize that almost all of the technological advancements we now enjoy would not have been brought to us had it not been for patent protection.

Arshan,

I somewhat agree with you, though it's interesting to see these opinions from people who (we assume) aren't in the legal field. I think Argent hit the nail on the head with the statement that "The problem isn't that patents are bad... it's that the system is currently misbalanced". I don't think that the entire patent system needs change, but the software field presents some special problems.

A lot of software patents are granted for code that could reasonably be written by other programmers who come up with the idea themselves. Some ideas are big enough that a solid argument can be made for a patent - for example, easily visible stuff like Amazon's one-click ordering (not a judgment on whether I think that should be patentable, but it's at least visible). Fair enough, if an idea like that is patented and a second programmer thinks it up on his own, I don't see a problem with preventing the second programmer or his company from using the idea. However, a lot of the inner workings of software that aren't so obvious are patentable. Having to go over each instruction and line of code to make sure someone isn't sitting on a patent for it is unrealistic and practically impossible. Lots of things that are practically general knowledge to programmers are actually patented - basic optimizations of code, ideas that really aren't that novel (the "tabbing" example in Argent's quote), other things that aren't really any sort of technological innovation (our company patented using a flashing red cursor in an order form!), etc.

Add to the mix the fact that a lot of high profile software was created by amateurs or 17 year old kids in their basements. These people aren't likely to have a lawyer looking over their shoulders advising that the file identification algorithm they used is patented by XYZ Corp. These programmers release their final product on the internet, and although they may have what most people consider a completely new idea (Napster?) the programmer came up with a method of organizing the program's display window that is patented. It doesn't affect the functionality of the program, which is novel and innovative. It's just a minor detail of presentation. Is that REALLY a case that we think requires royalty payments or an injunction?

Many programmers are simply shocked at what they see as general knowledge getting patent protection just because someone filled out an application. Especially to people with less of a legal inclination, these patents are equivalent to someone having a legalized monopoly on how to tie shoelaces. Add to the equation the fact that a huge chunk of software patents cover things that will be completely irrelevant and outdated once the patent runs out, and we see why hostile attitudes exist.

Although patent protection exists to foster technological advancement, part of that advancement comes from disclosure to others who want to use that information to build upon it once the limited monopoly runs out. In such a fast moving field as software, when patents frequently last long enough to outlive the useful life of the patented process we might have a real problem. Maybe a shorter limit on the monopoly is in order for the software field? If nothing else, stricter scrutiny for granting software patents seems to be needed.

Hello, I'm the guy who posts as "Argent" on slashdot.

Arshan, I'm aware that intellectual property law is explicitly supported in the US Constitution. The rationale for that support is also spelled out, and that rationale is very interesting.

"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"

If you look at the other clauses in this section of the Constitution, I don't believe you'll find any other that provides this kind of justification. The Constitution does not explain why Congress should have the power to declare war, or prevent counterfeiting, these are considered obvious. But it is careful to spell out exactly why there should be copyrights, patents, and other limited monopolies.

The founders had experience with the abuse of legal monopolies. Remember the Boston Tea Party? The Tea Act which lead to it was exactly this kind of restriction, and I believe that not only is the first part of this sentence as important as the second, but that they would be appalled at the uses to which the second part has been applied.

And I am aware that the drug industry creates another very difficult situation for current patent law. There are many uncommon maladies that aren't well researched because there's little likelihood that the research would pay off over the life of a patent... perhaps modifying the patent system to promote the development of useful drugs is as urgent as modifying it to reduce the chilling effect it has on the software industry. But as I'm in the software industry, that's where my primary interest lies, and that's the viewpoint I'm writing from.

And please keep in mind, the point of my article isn't to "question the usefulness of the patent system", it's to point out a couple of reasons for the opposition to software patents that *aren't* based on a general opposition to the patent system as a whole.

Let me just begin by saying I agree with both of you. I too feel, as I mentioned in my earlier comment, that the patent system needs some reform for software patents. I actually question whether software patents should be allowed at all, but I won't expand on that here. My earlier comment was based more on some of the responses to Argent's initial comment at Slashdot regarding software patents.

It's also worthwhile to ask how much recent copyright law "promotes the Progress of Science and the useful Arts".

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