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List:       dmca-discuss
Subject:    [DMCA_Discuss] Two Good Articles on Software Patents
From:       Seth Johnson <seth.johnson () realmeasures ! dyndns ! org>
Date:       2003-03-23 22:12:44
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(Two links to very good articles on software patents, both a bit dated, but
worthwhile.  Message forwarded from Patents list.  Article texts pasted
below.  -- Seth)

-------- Original Message --------
Subject: [Patents] Found on slashdot...
Date: Sun, 23 Mar 2003 22:14:40 +0100
From: David GLAUDE Mailing <dglaudemailing@gmx.net>
To: patents@aful.org

http://www.thestandard.com/article/0,1902,24011,00.html
http://www.forbes.com/asap/2002/0624/044.html

David GLAUDE

-- 
It's most certainly GNU/Linux, not Linux. Read more at
http://www.gnu.org/gnu/why-gnu-linux.html.

---


> http://www.thestandard.com/article/0,1902,24011,00.html


Software Developers Haunted by Patent Madness

By Boris Grondahl - Berlin Correspondent
Issue Date: Apr 26 2001

As software patents become more widespread, programmers and economists fear
that innovation will be buried in a mass of lawsuits.


On the presentation screen in the hall of Frankfurt University, lines of
code appear, character by character, slowly evolving into a computer
program. Suddenly, one subroutine flashes red. A warning dialogue appears,
stating: "The algorithm 'theorem of pythagoras' is patented". Information is
provided where a licence can be obtained and for which royalty fee.

This computer animation, shown during the introduction of a conference on
software patents yesterday, illustrates a nightmare haunting many software
developers in Europe. They fear that what is described as "patent madness"
by European and US patent offices will turn software development into
Russian roulette. The bullets: trivial patents on obvious techniques; the
revolver: lawyers of US software giants.

It was that fear that led SAP to establish its own patent division in 1997
after the German business software giant had been happy without one for its
first 25 years, according to Harald Hagedorn, SAP's patent attorney.
"Patents are not necessary to build a successful product," Hagedorn said,
"but the patent situation in the US made it necessary that we protect our
software."

SAP has now joined the usual practice in the US industry – to generate its
own patents so that it has a trade currency if competitors sue for
infringements of theirs. Cross-licences make software patents pretty much a
zero-sum game for the big players, but small developers fear that without a
patent portfolio they are the ones to be hurt in the process.

The current debate on software patents in the EU is centred on a policy
decision that was originally due a year ago. The European Commission has
announced a directive on software patents. But last summer, huge lobbying
efforts by Linux activists that gained support by many non-Linux companies,
politicians and economists have postponed this decision.

Behind the scenes, complex infighting is taking place, and the battle lines
often go right through the governments of member states. As a rule of thumb,
the pro-patent faction consists of patent lawyers and patent officials, and
extends to ministries of justice and the EC's DG Internal Market. The
sceptical or anti-patent faction comprises economists, programmers,
ministries of economics and the DG Infosociety.

Economists have actually always been sceptical about the benefits of the
patent system since it was carried through internationally in the late 19th
century. They objected that the incentive for invention wasn't necessary for
them to happen – the SAP presentation is a case in point for that argument –
and that patents would therefore be too high a price for society. At the
Frankfurt conference, Eric Maskin, a professor at the Institute for Advanced
Study in Princeton, qualified this criticism and said that while patents may
encourage research in some sectors – for example, pharmaceuticals – the
opposite was true about software.

"Software innovation is sequential [each new improvement builds on the last]
and complementary [different firms pursue different research lines]," Maskin
said. He presented an economic model to show that in that situation, patent
protection "can reduce overall innovation". One well-known effect of the
patent system is to discourage developers from certain patent-covered
fields. And this effect gets worse exponentially in industries where small,
incremental innovations are the rule rather than the exception.

Patent lawyers respond to that challenge by pointing out that software is
not the only sector where innovation is sequential. Their main argument was
brought forward at the conference by Heinrich Mayr, president of the German
Society for Computer Science. He said: "Intellectual property is protected
by the law, so why should software be treated differently."

The whole concept of intellectual property, however, rests not on a natural
right of property of ideas but on its function to promote innovation. And on
this record, cases like SAP abound in the software industry. There is no
evidence that software firms would stop developing their products if there
weren't patents. Instead of being a necessary condition for investments in
research and development, and a cornucopia of technical knowledge, the
patent system has grown into a permanent threat to developers; a ticking
bomb of infringement lawsuits.

---

> http://www.forbes.com/asap/2002/0624/044.html


Patently Absurd 
Gary L. Reback, 06.24.02 

Too many patents are just as bad for society as too few.

There are those who view the patent system as the seedbed of capitalism--the
place where ideas and new technologies are nurtured. This is a romantic
myth. In reality, patents are enormously powerful competitive weapons that
are proliferating dangerously, and the U.S. Patent and Trademark Office
(USPTO) has all the trappings of a revenue-driven, institutionalized arms
merchant. 

My own introduction to the realities of the patent system came in the 1980s,
when my client, Sun Microsystems--then a small company--was accused by IBM
of patent infringement. Threatening a massive lawsuit, IBM demanded a
meeting to present its claims. Fourteen IBM lawyers and their assistants,
all clad in the requisite dark blue suits, crowded into the largest
conference room Sun had. 

The chief blue suit orchestrated the presentation of the seven patents IBM
claimed were infringed, the most prominent of which was IBM's notorious "fat
lines" patent: To turn a thin line on a computer screen into a broad line,
you go up and down an equal distance from the ends of the thin line and then
connect the four points. You probably learned this technique for turning a
line into a rectangle in seventh-grade geometry, and, doubtless, you believe
it was devised by Euclid or some such 3,000-year-old thinker. Not according
to the examiners of the USPTO, who awarded IBM a patent on the process. 

After IBM's presentation, our turn came. As the Big Blue crew looked on
(without a flicker of emotion), my colleagues--all of whom had both
engineering and law degrees--took to the whiteboard with markers,
methodically illustrating, dissecting, and demolishing IBM's claims. We used
phrases like: "You must be kidding," and "You ought to be ashamed." But the
IBM team showed no emotion, save outright indifference. Confidently, we
proclaimed our conclusion: Only one of the seven IBM patents would be deemed
valid by a court, and no rational court would find that Sun's technology
infringed even that one. 

An awkward silence ensued. The blue suits did not even confer among
themselves. They just sat there, stonelike. Finally, the chief suit
responded. "OK," he said, "maybe you don't infringe these seven patents. But
we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM
headquarters in New York] and find seven patents you do infringe? Or do you
want to make this easy and just pay us $20 million?" 

After a modest bit of negotiation, Sun cut IBM a check, and the blue suits
went to the next company on their hit list. 

In corporate America, this type of shakedown is repeated weekly. The patent
as stimulant to invention has long since given way to the patent as blunt
instrument for establishing an innovation stranglehold. Sometimes the
antagonist is a large corporation, short on revenue-generating products but
long on royalty-generating patents. On other occasions, an opportunistic
"entrepreneur" who only produces patent applications uses the system's
overly broad and undisciplined patent grant to shake down a potential
competitor. 

Abusers of the patent system have been aided and abetted by the USPTO. At
best, the office has abdicated its role in forming patent policy. More
accurately, the office has concluded, without the benefit of analysis, that
more patents are better for society. In fact, every patent issued comes at
significant economic cost. Usually, a company needs to make better products
more cheaply to succeed. But as an incentive to innovate, a patent holder
gets a free pass from the rigors and challenges of competition. 

The right amount of such incentive may well spur invention. But too many
patents are just as bad for society as too few. The undisciplined
proliferation of patent grants puts vast sectors of the economy off-limits
to competition, without any corresponding benefit to the public. 

The tension between the patent as a way to stimulate invention and the
patent as a weapon against legitimate competition is inherent in the system.
And, given the enormous competitive advantage conferred by a patent, it is
not difficult to anticipate that interests of all types would besiege the
USPTO seeking the government's imprimatur to exclude competition. For almost
two centuries, the USPTO did a reasonable job balancing the need for
incentive against the need for competition. But about 20 years ago the
floodgates burst open, and the free-enterprise system has been thrashing in
a tidal surge of patent claims ever since.

_______________________________________________


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