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USPTO Seeks Public Comments On Patent Law Treaty
Anonymous Coward writes: "The U.S. Patent and Trademark office is seeking public comments (pdf form) on the Draft Patent Law Treaty. They say the treaty is intended to "simplify the formal requirements associated with patent applications." Here's your chance to weigh in alongside Tim O'Reilly, Jeff Bezos, RMS, et. al." WIPO will be meeting from May 11 to June 2 of this year in Geneva, and all public comments are due by April 21. The pdf linked to above lists fax, snail-mail and e-mail addresses to which you can direct your comments on their efforts to streamline patent applications and patents, "and the subsequent changes to United States law and practice." Non-U.S. residents, remember your voice is important here, too!
Here is a letter that I wrote to the UK patent office about software patents. You should not cut and paste it - for a start, it is far too long - but you might like to mention the more important ideas.
The letter talks about software patents in general, it doesn't say anything about WIPO, so you might have to add that. Here it is, (but again, don't just cut and paste, write in your own words):
To: xxxxSubject: Software patents
From: Ed Avis
Dear Sir,
I am concerned at moves to allow patents on computer programs and algorithms in Europe. I think that this would be misguided, hamper innovation, and disadvantage British consumers and businesses. The patent system is not appropriate for software.
First, I don't think that the question of whether a computer program is an 'invention' is relevant. Just because patents are useful for some kinds of invention doesn't mean that we should blindly apply the same policy to software. Speaking as a software developer myself, I would say that a program is more like a literary work, but either way, we should consider a patent system on its merits, and not by just carrying over a system from some other area.
We should consider whether software patents would promote innovation, whether they would encourage disclosure of new techniques, and whether they would benefit the writers or users of software. In doing this we have an excellent example to consider, the software patent system in the US.
Software patents in America have been a disaster. Software developers constantly face the threat of lawsuits from companies which hold hundreds, thousands of patents on ideas which any software engineer - or in some cases, even any layman - would consider trivial or obvious. The only way to defend against this is to get your own collection of patents, preferably worded as vaguely as possible so that it will be impossible to write a program without infringing. Then you can countersue if anyone claims you are infringing on their patent, and probably reach a cross-licensing arrangement.
The people who lose out are the small to medium size software developers, who cannot afford a large enough legal department and a big enough patent portfolio for defence. Some companies (such as Oracle, the leading database company) have openly admitted that the only reason they apply for patents is to defend themselves against spurious lawsuits from other patent holders. Small developers are the ones who lose out, and it is small developers who make most of the breakthrough innovations in software. In any case, the hard work is covered by copyright (see below) and patents are obtained only as a legal weapon. So patents do not help innovation.
Do patents encourage disclosure? This is not true either. Disclosing the human-readable source code to a program opens up a developer to patent infringement lawsuits, which are less likely if the program's workings are kept secret. The fact that patents once granted are made public is not very significant here, since any important and non-trivial algorithm would need to be made public in any case, in order to become an accepted standard.
Do patents on software benefit the consumer? No. There is a grave threat to competitiveness in many markets from patented business models, which are quite easy to achieve if you are allowed to get patents on particular software ideas. For example, a patent was recently granted in Norway which, according to its owner, covers all e-commerce in Europe. In America, the bookseller Barnes & Noble was sued by rival Amazon.com over placing a link to 'buy now' on its web pages. If Europe starts granting patents on computer programs, it will be possible to get a monopoly on a particular business model simply by patenting the idea of a software program that implements that model. In the software market, consumers also lose out. Patents make it easy to stamp out competing or compatible products, by adding some trivial 'wrinkle' to data formats used and then patenting it. The software market is naturally very prone to creating monopolies; it doesn't need any extra help from the patent system.
Developers are expected to check every line of their code against thousands of existing patents. Consider that the USPTO has allowed the same algorithm (LZW compression) to be patented twice, by Unisys and by IBM. If even the patent office cannot check an application against previous patents, what hope is there for the developer checking a 500,000 line program?
I don't think that software patents in America have benefited anybody except a handful of very large corporations and patent lawyers.
Some people have advocated introducing software patents in Europe, claiming that it will help small European software firms compete against large American ones. I think I have explained why quite the opposite is true; the best help we can give to software firms is an open and competitive marketplace. Others claim that software patents will help in the fight against piracy, which is a complete non sequitur. Software piracy is a copyright violation and has nothing to do with patents. Neither should we harmonize our laws with America just for the sake of it; it's unfortunate that the US system is so harmful, but at least we are free of it here. (In any case, patents on software happened by accident; Congress didn't pass any law, but rather judges ruled that software was an invention and hence should be patentable. They did not, however, rule that since it was an invention it should not be copyrightable.)
On a different level, software is unlike physical inventions. Innovation in software development is not a big event but an everyday occurrence; every program a developer writes will contain some new technique or a new way of combining existing techniques. Software development is fundamentally about combining a large number of existing ideas in new ways, and this work is covered by copyright. Copyright works well for software; it covers the hard part of development, which is actually writing the code, testing, and documentating. Patents serve only to hamper other programs which have been developed independently.
Don't take my word for it that patents are a danger, hear what Tim Berners-Lee, the creator of the World Wide Web has to say:
If you wish, I can refer you to dozens of other sources who agree with what I am saying. It is difficult to find anybody in favour of software patents, except for statements from large companies such as IBM.
Sorry that this is a long letter, but this is a subject of great importance, not just for the software industry, but for the whole world in the information age. In summary:I hope that the Patent Office will argue against granting patents on software in Europe, whether by changing article 52.2 or by any other method.
Yikes, that was long. But you get the idea. Read more at freepatents.org or the archive of this message on the mailing list.
-- Ed Avis ed@membled.com
The site linked to doesn't seem to have any documents talking about actual patent laws - it's mostly stuff that seems to be about agreeing on the beurocratic powers that national patent offices have, and standardising the minutiae of their proceedures. Important things, in this Globalised World(TM) we live in, but nothing much to do with the stuff we're so interested in/worried about here at /. . . .
;-)
I have a feeling (and IANAP[olitical]L[obbyist], so take this with a grain or two of salt) that the best approach to making changes to the areas of patent law that we're concerned about is simply to lobby our respective governments - trying to get anything done at an international treaty level is largely pointless, because the power brokers at that level are all governments, and individuals don't get a look-in . . . Unfortunately, this kind of thing isn't done IETF style, it's done UN style. So read these documents and comment as much on them as you want, but talk to your local politician/scumbag/bagman if you want something to change.
Actually, now that I think about it, having a go at something IETF-like for things like patent law might be a reasonable idea - get a bunch of volunteers together to think this thing through, discuss possible solutions, and come up with some draft laws that countries can use as a model . . . I can see that approach coming up with something much more workable and practical than the current approach (which seems to be something along the lines of `buy as many politicians as you can'). Unfortunately, governments would just ignore it . . . But hey, it might be fun to try!
himi
Hey, maybe we should patent Open Source Politics . . .
--
My very own DeCSS mirror.
The fundamental problem with patents, underlying all of these solutions, is /duration/. The above solutions fix /symptoms/. The /real/ problem is that some arbitrary duration of patent was conjured up some 200 or so years ago, and nothing has changed. Patent duration /must/ be inversely proportional to the speed of the industry they are in. In a fast moving industry like the computer industry, a patent is obsolete after a few years, let alone 7 or 17. It makes no sense to stifle all those wasted years worth of potential innovation. All that time that the current patent system allows the patent holder to sit on their patent, a lot of innovation could occur in a fast moving industry. I believe once the patent duration is tied, using common sense, to the market it is in that the symptoms will go away. We won't really need compulsory relicensing, because in a few years their competitors can have it anyway. I agree with points 2 and 3. Not sure about 4 and 5.
/not/ be based on a business model at all. The patent office's customers aren't the few companies that pay megabucks for patents, but to the few hundred million citizens. They should take the citizens' interests into hand when they examine patents.
In general the patent office should
It's 10 PM. Do you know if you're un-American?
It would be nice if there was some kind of `standard' letter that could be copy/paste/emailed to the patent office. A lot of people stating the same always attracts attention and it will show that there is some consensus in this community.
Do not forget that you are not the only one who can let your voice being heard. The Big Companies(TM) have this opportunity too, and while some of them might be Very Evil(TM), they are often very good at stating clearly (and politely!) what they want.
So please don't shout at them, don't threaten them, but be constructive.
Patents are evil for lots of reasons. Here are a few of them that spring into mind:
1. Companies could use patents to stop OSS from working.
2. If something is good, a lot of effort ist wasted to find something to work around a patent.
3. Progress can be halted or stopped for a very long time.
4. Third world is stopped from closing the gap in working knowledge.
5. If everything belongs to someone, nothing belongs to the public, in spite of the fact that most ideas are not made on isolated islands. We all get our ideas from the society we live in - do we really have the right to prevent the public from using this ideas?
6. Patents are expensive. If you really have a good idea, chances are that you can't use them. Patents are for big companies only.
These are only some of the reasons why we have to fight this evil. It has an impact on our lives. So even if you are a non-US-resident like me, join the fight!
You found a sword: +4 damage, +5 moderator points
I haven't had a chance to examine what's on the website (many documents). If this is to try and make it easier to apply for patents throughout the world then there is a lot of work to do in terms of standardising what can and cannot be patented (The US seems to have much broader rules than say Europe/UK).
If it is however concerned with just generally streamlining the process then considering the problem with all the apparently spurious software patents do we really need the process simplified.
What we need is the system bolstered with examiners who have resources to identify obvious and non-original concepts in fields such as the internet and computer programming.
Particularly as the examiners do not have sufficient experience or knowledge in these areas we need some way of making peer review available to them. Potentially there should be a probationary period or provisional publication where a patent can be challenged/questioned not in court but by reference back to the patent office.
Also the requirement for prior art searches/disclosures should be tightened up potentially with fines and summary dismissals of patents for deliberate non-disclosure. Otherwise the system can encourage and reward such behaviour.
Patents were developed to allow inventors and those spending money on research to have a chance to recoup those costs and realise a resonable return by granting a limited monopoly on their ideas. While ensuring that those ideas were published and available to others and not hidden/lost as trade secrets etc.
These days however a lot of the software/internet patents are not on ideas that have taken any great investment to develop. Rather they are for taking standard programming practices, methods, and techniques and applying them to new environments such as the internet. This to my mind makes them obvious to a practitioner in the field. If not does this mean that the first person to write a bubblesort on the latest compiler/hardware can patent it?
Patents seem to have become in certain areas more a cynical commercial weapon than a way of encouraging and rewarding research and its publication.
Gamma Testing - Where testing is extended to the full user community (AKA Shipping the Program)
This site lists the web pages of 19 patent agencies.
In particular, here is the Australian site (because I'm Australian), and here is the Eurpoean Union patent office (because it covers patents in all member states)
As I see it, the main problems with the current patent system are twofold:
A: They are often granted for ideas that do not involve a sufficiently inventive step.
B: They are often used to stifle innovation by refusing to license them to others in a fair way.
I am not sure how one would go about dealing with A, but I have been thinking about B, and can see several alternatives that would fix the problem quite easily.
In order to provoke debate, I propose the following ammentment to patent law:
- Licensing of patents to third parties should be compulsary.
- This licensing should be done through an easy, standard mechanism, allowing the third party to license several patents at once through the patent office.
- The licensing cost should be registered, and not allowed to increase above the rate of inflation.
- Licensing should be "per product installation".
- Nobody, including the owner of the patent should be allowed to sell their own product for less than the combined value of the patents it uses, thus preventing inflated license costs.
I have an elaboration of this here.This compremise would still allow open source software to use patents. Licenses would only be paid when someone new wanted to install the software, and not when source was passed around.
I don't think it would be practical, or desirable to abolish software patents all together as that would remove a lot of the motivation for companies to invest in research.
Any comments?