Donald Chisum has written the standard reference on patent
law[9] and is frequently quoted in
judicial decisions. His expertise is in integrating patent
decisions into a coherent view of the patent law across
mechanical, electrical, chemical and other technologies as they
are handed down. His reputation rests on the soundness of his
analysis in predicting how courts will rule. Chisum views software as one of many technologies and says
software is almost as patentable as anything else and to the
degree that it is not, it should be[8].
He has two concerns. First, the current decisions uphold most
software as patentable in a way that forces patent lawyers and
the technical community to focus on legal technicalities rather
than the technical ones. Second, he questions whether lack of
patentability will create underinvestment in software innovation
as compared to other technologies. His approach is similar to Judge Schwarzer's in determining
how to calibrate the credibility of possible "junk
science" in a courtroom. The question is not "Does this
make sense in isolation?" but "How does it fit into an
organized body of knowledge?"[44]
The League
provides no citations for its position in Against
Software Patents. But a similar article by the same authors[15] has four citations: Mitchell
Kapor's congressional testimony and articles by lawyers Pamela
Samuelson[39, 41] and Brian Kahin[26] let us see how the anti-software
patent position fits in with "an organized body of
knowledge." While patent lawyers conversant with software are in virtual
unanimity that software should be patentable, neither of these
lawyers is a patent lawyer. As background we should consider the legal education most
lawyers get. First, very few study patent law and are not exposed
to the fundamental concept that patent rights are property
rights. Second, most law students do take antitrust law where
they learn that monopolies are illegal. Later, when they discover
patents they often mistakenly see monopolies. Third, law students
are taught to be advocates. Their job is not to make a considered
opinion, but to present their case as best they can; someone
else-the judge, Congress, the public- makes decisions. This author's opinion is that those who took an anti-patent
point of view did it as a knee jerk intuitive reaction. Away from
the mainline of software business and patent law, distrustful of
monopolies and inexperienced with intellectual property, these
lawyers and software developers found support in one another.
This view gained respectability as a contrarian's view and is
always welcome in legal journals and at conferences. Samuelson argues that the basis of software patentability is
weak and says the primary issue is a policy one[39]. She presents two arguments
against software patentability and Kahin a third: A more accurate statement would be: "The industry has
flourished and innovated with little realization in the software
community that patent protection was available." The growth of the software industry was not due to differences
between software and other technologies, but to its synergetic
relationship with the computer industry and the new business
opportunities created by the computer's rapidly decreasing costs.
Until recently software has been seen by computer companies as a
loss leader. Software created the demand for computers which was,
and still is, the dominant industry: but software developers were
to be kept fat, dumb and happy: salaries were high, patents were
not mentioned, and there was lots of technology to play with. Accidental Empires shows that the personal
computer software successes were achieved by amateurs who were
lucky enough to be in the right place at the right time[12]. The successful early PC software
companies (a) marketed innovations pioneered by others and (b)
aggressively pursued their own intellectual property rights:
Microsoft's MS/DOS is a derivative of CP/M; and Lotus' 1-2-3 of
VisiCalc. Had Digital Research, VisiCorp and Software Arts
asserted intellectual property rights as aggressively as
Microsoft and Lotus, they might not have been eclipsed by them. In the early stage of the industrial life cycle, the first
person in his garage who acts on the opportunity starts with the
biggest and most established company in the business. When there
is no established competition, new companies can compete without
patents. As the industry matures it becomes difficult for new
companies to enter the market without a sustainable advantage
such as patents. The free enterprise system rewarded entrepreneurs whose
personal computer software companies were successful, as it
should, but that success should not blind us to its
nature-bringing the innovations of others to market. We expect
that if patents had been more widely used by the software
industry, the true innovators would have received a fairer share
of the rewards, thus rewarding innovation as well as business
savvy. Had patents been more widespread, the software industry
would have been more profitable, it would have grown with less of
a boom-and-bust cycle albeit less rapidly and there would have
been a greater diversity of software product categories and
features. To base a software intellectual property system just on the
experience of the last ten years would be like raising teenagers
in the expectation that their childhood will be repeated? Samuelson says, "... it is primarily from the widespread concerns
about the effects of patents from within the industry and the
technical community that she has pursued this study
questioning the patent protection for computer program
related inventions."[39] Samuelson addresses this perception by conducting a survey to
see how widespread the perception is, at least in the related
area of user interface copyrights[42],
rather than attempting to determine if the perception reflects
reality. In reporting the perception she gives it more credence,
reinforcing any error, and creating more concern. It would seem
to be more constructive to research the effect of patents on
innovation and business formation in other industries to see how
it might apply to software, and analyze software patents that
exist for their effect on innovation and new business formation
as we do. It makes as much sense to devise theories of innovation by
polling the software community as it does to devise laws of
physics by polling people who walk. The intuitive answer is not
necessarily the correct one. Ask people, "Assume you are
walking at a steady pace holding a ball, and you drop the ball.
Will the ball hit the ground in front of you, in back of you, or
next to you?" most people will say "in back of
me."[32] A physicist will
tell you that Newton's laws predict, "next to me," and
can perform an experiment to prove it. In contrast to Chisum and the mainstream of patent law where
software is viewed from a broad perspective of many technologies,
Samuelson views the law from inside the software community
looking out. She has always advocated narrow protection- arguing
as late as 1984 that CONTU's recommendation that software in
machine readable form be copyrightable was ill considered [40 ] Samuelson acknowledges that the conditions that promoted
software innovation until now may be different from those that
will promote it in the future. Samuelson proposes to design a special (sui generis) form of
protection for software, saying, "It is possible to design a
law that is appropriate to the kind of subject matter that
software is." How can one be certain of one's ability to
build a skyscraper, if one is uncertain if one is building on
bedrock or marshland? Writing laws is like designing systems. They will have desired
and undesired, intended and unintended consequences. The current
law, especially Benson forces patent lawyers into a Catch 22
dilemma: Write a straightforward patent, and get it rejected as a
mathematical algorithm; write one that is patentable subject
matter and it will not be straightforward. Attempting to make
only software unpatentable will no more prevent practical
software patents from issuing and being enforced than prohibition
will eliminate alcoholism. Samuelson laments that "patent
lawyers [do not] claim software-related inventions in a
straightforward manner[39] ; but
this is like blaming a program's users or the market for not
behaving as expected-a sure sign of an inexperienced designer.
Law, software, and marketing strategies must be designed the same
way the Constitution was: based not on how we would like people
to behave, but on how self interested people will actually
behave. Academics such as Samuelson who pontificate on software
patents and want to create sui generis system of protection seem
ready to reinvent the wheel before they understand how a wagon
works or the infrastructure of the highway system. Most show no
knowledge or understanding of the processes of innovation over
hundreds of years in a variety of technologies. Most have little,
if any, experience prosecuting (filing), analyzing, or litigating
patents.They argue that software is different from other
technologies, not from the perspective of the history of
innovation and patents over a range of technologies, but from the
myopic view of the development of a single technology, largely in
a single software marketplace in an atypical decade-the personal
computer market in the 1980s. Ben Franklin described a professor who was so learned he knew
the word for horse in five languages: equus in Latin, caballo in
Spanish, cheval in French, cavallo in Italian, and Pferd, in
German. He then went out to purchase one, and returned with a
cow. Given your experience observing complex software systems
develop and how the hype manifests itself in reality, when you
hear sui generis protection systems being proposed as transport
into the twenty-first century, ask yourself: "Will I ride
horse or a cow?" Taking a contrary position and fighting for it, as Samuelson
does, is in the highest tradition of the law. In part it is
because truth emerges from the debate and if there is no one to
debate with, a poor sort of truth will emerge. Yesterday's
contrarian view may emerge as the mainstream view. It is like
having advocates for a programming language like FORTH. It forces
identification and discussion of issues and influences the
industry-PostScript is Forth-like. But software developers
seriously consider programming in FORTH only in unusual
circumstances. Brian Kahin, a research fellow in the Science, Technology and
Public Policy Program at Harvard University's Kennedy School of
Government offers a different reason software should not be
patentable [25]: A deeper, more disturbing problem in patenting programs was
barely evident before computers became ubiquitous personal tools
... the computer has developed into a medium for human expression
and a mediator of human experience. Thus, what is increasingly at
stake in software patents is the generation and flow of
information. This "barely evident" "problem" was
addressed by Lincoln who, in his Lecture on Discoveries [23], said: certain inventions and discoveries occurred, of particular
value on account of their efficiency in facilitating all
other inventions and discoveries. Of these were the arts of
writing and of printing-the discovery of America, and the
introduction of Patent-laws." Lincoln not only believed that the patent laws encouraged
innovation, but he anticipated Mr. Kahin in realizing that
inventions which promote dissemination of information are
particularly important. Since Lincoln's speech, patents seem to
have encouraged many inventions which engender the
"generation and flow of information": the telephone
(Bell), phonograph (Edison), movie camera (Edison), Xerography
(Carlson), radio (Armstrong and Marconi), Phototypesetting
(Scheffer), and TV (Philo T. Farnsworth). Even the birth of
patenting, Aldus Manutius, the famous Venetian scholar printer
for whom the desktop publishing company is named, received two
patents-one on a form of Greek type-and a ten year monopoly to
use the italic font which he invented . Having discovered that he is treading in the footsteps of
Lincoln, albeit in the opposite direction, Kahin might, in
planning his future travel, consult the work of his colleagues at
the Kennedy School of Government which has guided our analysis[33]. (Last updated on 10/06/98) Intellectual Property Creators
The Academic Debate: Considered Opinion and Advocacy
The Mainstream View
The Contrarian's View
A. The industry has flourished and innovated without patents.
B. Many in the software industry say software patents will
discourage innovation.
C: Software helps disseminate information
Intellectual
Property Creators
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© Paul Heckel 1995-7