[DMCA-Activists] Peter Coffee on Software Patents

[Seth Johnson]

(Very nicely put commentary by Peter Coffee.  -- Seth)


> http://www.eweek.com/article2/0,1759,1775150,00.asp


Patents Cast Shadow on Future Development


By Peter Coffee

March 10, 2005


Opinion: Software patents are a temptation; temptation leads to
stagnation; stagnation leads to the Dark Side.


Software patents, in the idiom of the Star Wars saga, are the
Dark Side of the Force. If everyone would forswear their power to
destroy, the universe would be a better place—but that happy
state is dangerously unstable.

As soon as even one of the defenders of peace and justice falls
into the vortex of hatred, the others face the dilemma of how to
fight him without ultimately sharing his fate.

Jedi apprentice Bill Gates faced this choice in 1991, when he
wrote to his coworkers that, "If people had understood how
patents would be granted when most of today's ideas were
invented, and had taken out patents, the industry would be at a
complete standstill today"
(http://www.bralyn.net/etext/literature/bill.gates/challenges-strategy.txt).

Perceiving himself surrounded by foes on every side, Gates then
made the same tragically logical choice that we'll no doubt see
depicted two months from now in the long-awaited Revenge of the
Sith.

The necessary strategy, Gates stated, was "patent exchanges with
large companies and patenting as much as we can." He's never
looked back—and as a matter of fiduciary responsibility to his
stockholders, who could condemn him?

Gates accurately identified both the entrepreneurial opportunity
and the fundamental flaw of the software patent system when he
wrote in that 1991 memo, "In many application categories
straighforward [sic] thinking ahead allows you to come up with
patentable ideas."

It would have been a breach of his duties as head of a public
company to ignore that proposition—which the subsequent decade
proved amply correct in practice. Between 1991 and 2001, the
number of software patents granted each year grew by a factor of
four. (Different sources offer different absolute numbers of
"software patents" granted during that time, but all show roughly
the same rate of growth.)

Scholars found, though, that the measurable value of a software
patent appeared to lie more in holding it than in using it: that
a software patent portfolio could be shown, statistically, to be
more potent as a tool of defense than as a license to offer an
innovation in the marketplace without fear of losing one's
competitive edge to imitators
(http://www.epip.ruc.dk/Papers/Hall_MacGarvie_Paper.pdf).

This inspired Constitutional scholars to point out the qualifying
language of Article I, Section 8. That clause authorizes Congress
"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."

At some point, some black-robed judicial Jedi needed to whip out
the light saber of the supreme law of the land and ask, "Where is
the promotion of progress?" For without that, there is no
foundation of Congressional power and therefore no basis in law
(http://www.eweek.com/article2/0,3959,867464,00.asp).

Proponents of over-broad patent protection have long since
achieved a major victory, though, by successfully defining the
terms of debate to favor their own interests.

If patents were discussed under the general label of "temporary
grant of competitive advantage," the flavor of that discussion
would be quite different from that of today's self-righteous
demands for protection of "intellectual property."

The latter phrase is much more recent in origin than the
Constitution's limited grant of patent and copyright powers.
First used in France in 1846, and not introduced into worldwide
use until 1967, the notion of "intellectual property"
(http://en.wikipedia.org/wiki/Intellectual_property#History_of_the_term)
seems almost diametrically opposed to the view of Thomas
Jefferson that "He who receives an idea from me receives
instruction himself without lessening mine; as he who lights his
[candle] at mine, receives light without darkening me"
(http://www.stephankinsella.com/publications/InsightMag_com_symp_printable.htm).

Gates feared that software patents would bring the industry to a
standstill. One might argue that he was right, and that the
paralysis he feared has come to pass. When was the last time that
the industry saw something as remarkably innovative as the
spreadsheet, the WIMP (Window-Icon-Menu-Pointing device)
interface, or the hyperlink? All of these emerged in the period
before 1990—that is, in the period before the explosion in grants
of software patents (http://home.pon.net/hunnicutt/PChist.htm).

(Pointer: To read about the EU Council's decision to adopt a
controversial IT patenting proposal, click here
[http://www.eweek.com/article2/0,1759,1773357,00.asp].)

The darkness dismissed by Thomas Jefferson, the Dark Side of the
Force of innovation, is arguably upon us now. Both would-be
innovators and IT buyers should welcome any initiative to bring
the industry out of that shadow.

Based on what's been disclosed so far, unfortunately, the
proposals advanced this week by Microsoft do not go in that
bright direction—but only lead toward a somewhat less cluttered
(and for Microsoft and other large IT players, more comfortable)
darkness.


-- 

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