Monday, November 26, 2012

7 Thoughts on patents, copyright and promoting progress of science and the useful arts.

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.
United States Constitution, Article I, Section 8
The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. USPTO

Hi there, I'm MrCopilot. I develop solutions, usually involving a general purpose computer and some clever arrangements of words and numbers. I am a product of the digital age, I grew up with technology in an era when it was just peeking its head into homes and business. I recall the brief flirtations with red LED watches, laser discs, the advent of the home computing, networking, email, 300 baud BBS ..., and on through to the present day where everyone is interconnected by multiple devices per person. I have come to understand a few things that are seemingly nonobvious to the major players in the information technology industry based on the current court dockets.

1) Software is already covered by Copyright law.
Program = collection of words, numbers and symbols. 
Book = collection of words, numbers, and symbols. 
Both offer the Author protection for his "writings" as defined above. Many tend to depend on that protection in the free software and open source world that I prefer to live in, and many more depend on it in the closed source world that I tend to not visit often. It needs no further protection. You can't use it unless I give you permission. Feel free to implement your own version or licence it under my terms.

2) No piece or collection of software is an invention.
It is software. It is writings, it is math, it is function.
That interpretation immediately precludes the issuance of any Software Patent. Unfortunately, that interpretation has not been the prevailing one by those in charge of issuance. Consequently we have battles in courts across the country about whether a programmer can develop utilizing in-app payments, device manufacturers having to change software because it allows a user to slide to unlock or universally search their device and internet.

3) It is all obvious.
Every single piece of software ever written could be written by any other programmer of ordinary skill in the area of technology related to the software. The level of sophistication, abstraction, design, and elegance would vary, but given the same input nearly all competent software developers can accomplish whatever is asked. 

4) General Purpose Computing promotes the useful arts. Limiting their functions, development, deployments and sales does not.
Any software designed to run on a general purpose computer should be free from patent infringement as by definition of its use it is promoting the useful arts. Banning the import and sale of a general computing device based on software it contains is as ludicrous as banning a book for the ideas expressed as to similar to previous works. Essentially, "You can't sell a dictionary, We already sell a dictionary."  The implementation of an idea may be patented, but the idea may not. and yet, that is what I see in every software patent case I come across. 

5) Software & Hardware development move at different time frames from each other and "real time".
The current Patent grant of 20yrs is 4 to 10 lifetimes in the technology world. 5yrs is ancient in terms of hardware, The useful lifetime of a typical "novel' software innovation is limited by what it runs on and the constraints of the day. New interfaces, increases in computing power, memory capacity, easy networking and other improvements render old solutions unnecessary and obsolete sometimes in the time frame of months. In software we keep what we need, and incrementally improve it, but also cull out the cruft, thin out support for ancient hardware and disused protocols.  Extended exclusivity of a certain function, feature or description implemented in software ensures it will never be useful to anyone but the patent holder, in other words the opposite of progressing the useful arts.

6) Patents have become weaponized.
A competitive advantage can be gained by disrupting normal operations of your competitors with long, costly legal battles and filed injunctions across the globe (even when you have no actual hope in winning in the end). If you can afford it and they can't. If you can get a temporary ban, well, than that is even better for the bottom line. Patent abuse is as old as patents themselves. The modern equivalent is something far worse, far more destructive to actual innovation than any abuse seen before. 

7) Only Congress has the power to affect the changes required to solve this problem. 
They set the rules, the limits, the renewal fees and time frames through legislation. That gives you the voter a lever to use to help solve this problem. This gives me both hope and dread. Hope that the problem rises to the level of congressional action (no easy feat), Hope that enough people pay attention for a minute to whatever godawful first draft comes outta the House subcommittee on Technology and Innovation, and properly raise SOPA type hell. Yes, it is really Chaired by Ben Quayle! Dread rising...

Fortunately many agree that there is a problem. The scope and severity is debated internally but many are of the opinion that something must be done and debates over possible solutions are occurring regularly.

SCU put on a lovely conference about what can be done.
Groklaw has a decent overview written by a thoughtful attendee.
Wired is running an extended series of opinion pieces done by industry figures entitled The Patent Fix

Facts figures, news and analysis

Pay attention and make your voice heard.

Now if you will excuse me I have some useful arts that need promoting.


Tech Articles