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Software Patents Overhaul
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posted by mpawlo
on Monday August 12, @02:17PM
from the not-invented-here dept.
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John Fitzgibbon argues patents was "invented" (sic!) to protect and encourage inventors. However, according to Fitzgibbon, software technology and associated intellectual property, current patent laws show their weaknesses, and can hinder innovation rather than promoting it. Fitzgibbon tries to introduce a separate software patent system, but I am not convinced. Why should software be subject to patent at all? Is it not better to introduce a new type of intellectual property - software rights - which is a mix of copyright and patent provisions?
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The Fine Print:
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Jerry Pournelli and many other astute professionals addressed the Copyright (Patent) problem about 1980. There was a very spirited discussion at that time, and had legistators, professional legal associations, and other interested parties delt with the problem then -- we would not have the problem now.
The consensus was that niether Patent law NOR Copyright law adequately delt with computer code. Where Code has characteristics which apply to either Copyright or Patent, neither method of protection fits. Unfortunately the industry was left to interpret the laws as they saw fit which has resulted in a (de facto) interpretation the fundamentally violates the intent of both Patent and Copyright. By this I mean that current application for Copyright and Patent is being used to stifle innovation and provide barriers to competition.
For example:
The duration of a Patent was originally set at 17 years. The idea was that the average invention had a 100 year useful life, therefore reserving the first 17 percent of that useful life to provide incentive to inventors was reasonable.
The average software program has a useful life of about 5 years. The average operating system (major revision) seems to be about two years. Thus current patent law (and copyright is worse) restricts derivative works for a period exceeding the expected usefulness of the product by many times.
Say Microsoft was forced to register the source code for Windows98 with the Patent office. Say when Microsoft released Windows 2000 and stopped support for WIndows98, the patent expired and the source was released into the commons. At this time the new product would have to compete with the old, and the customer would have the choice of staying with the old (permanently if he chose), or taking advantage of the new features of the new.
Under current law, the Patent Holder has the (RIGHT) to remove the old product from the market and thus remove the innovation from the commons. It is this level of control that Patent Law and Copyright Law was ment to prevent, not facilitate.
We need to look very seriously at new legislation that puts new material into the commons more quickly while still preserving sufficient incentive for inovators to invent.
What we need to remember is that the purpose of both Patent and Copyright law is to put the makimum amount of new knowledge into the commons as quickly as possible. By providing a minimum level of protection to authors and inventors, we increase the output of these very important people. In spite of this we can not loose site of the fact that the goal is to provide a system that benefits everyone (the commons), not the individual authors and inventors.
TOM
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Humanity has the stars in its future, and that future is too important to be
lost under the burden of juvenile folly and ignorant superstition.
- Isaac Asimov
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