[Fsfe-france] Positions sur les brevets logiciels (02 / 2002)

[Loic Dachary]

        Slt,

        Pour information, des positions qui me semblent intéressante à
exploiter (Amazon.com, Borland, Yahoo!) et assez récentes. J'ai
trouvé ça en cherchant des éléments sur le droit de la concurrence
et le droit d'auteur (c'est pas gagné).

        A++,

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http://www.ftc.gov/opp/intellect/020227trans.pdf

Mr. Kohn, former General Counsel of Borland:

I would argue or at least put out that in the software area there's a
real potential for overprotection of what's going on in a piece of
software. It's already protected by copyright. Now you're starting to
add patents. What is the marginal benefit of this? Now in the software
area, just by experience I think most businessmen in our field will
tell you that innovation generally is promoted by competition and not
by the intellectual property protection. Of course, intellectual
property protection is important, it's good. You need to be
compensated for your software so that, you know, people can't just or
shouldn't be able to just copy your software verbatim and not pay you
for these additional copies. But most of the innovation comes from a
competitor coming out with a new feature or something as opposed to,
"Boy, I think we can get a patent on this and protect it for 17
years." Most of the patents filed, I would argue, in our field, in the
software area, are filed for defensive purposes so that if you get
sued you'll have a war chest in order to defend yourself, which is
precisely what Borland did over the period of time when I was General
Counsel. 
We filed patents on virtually everything.  Any innovation in user
interface design, flyover help, spreadsheet notebooks -- I mean, you
name it, I had my guys file patent applications. Those features
weren't developed because we could get a patent on it. They were
developed because we had to build a better product than our
competitor. I was filing them because I knew I was going to get sued
someday by some large competitor who had patents and I needed some way
to defend ourselves against that lawsuit. 
Now, finally, the point I want to make about the system is this. When
you get involved in one of these cases, or you get involved even with
a settlement discussion, and let's say you're legitimately infringing
somebody else's patent in some small piece of process or something
that you use in this ten million lines of software code for your
product, potentially hundreds of thousands of patentable ideas in your
code, somebody sues you and says, "You're using our process, you're
using our this or that, our interface design. We want a ten percent
royalty on your sales, we want ten percent of your gross." I mean, you
end up getting into these discussions, "Well, wait a minute, wait a
minute. This is only one patent out of a hundred thousand, okay. You
can't ask us for ten percent of our product, it's just a minor
feature. Yeah, we're infringing it." "Well, if you don't pay us the
money, we're going to sue you, and you know what the damages are in a
patent case." 

Yar Chaikovsky, former and sole patent counsel at Yahoo!:

My main point [...] is that it's really competition that spurs
innovation. I haven't seen anyone look at the USPTO's website and say,
"Wow, I found these ten patents.  going to come up with a great idea."

Paul Misener, Amazon.com's Vice President for Global Public Policy:

A business method or software patent ought to be able to catch a lot
of wind in three to five years and there's probably no need to protect
that for twenty years, so in spite of the fact that we hold several of
these patents, we actually lobbied for a reduced term on them.

Brad Friedman, Director of Intellectual Property at Cadence Design
Systems, Incorporated:

The beneficial role the patent system in its present form plays in
Cadence's industry is not at all clear. Compared to the effect of
competition in this industry, the current patent system has relatively
little effect on the motivation to innovate. The short time cycles of
innovation, product development and market obsolescence in this
industry are inadequately addressed by a patent system encumbered by a
single process used for all patent applications.

-- 
Loic   Dachary         http://www.dachary.org/  address@hidden
12 bd  Magenta         http://www.eucd.info/      address@hidden
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