* Software Patents Epilogue (Part 9)

The 2003 Law and Technology Conference at the Technology Law Center of the University of Maine School of Law was the most fun I’ve had at a conference in years.

>From info-at-heels.com  Wed Jul 16 11:58:57 2003
Date: Wed, 16 Jul 2003 11:58:52 -0400
From: "Erik J. Heels" <info-at-heels.com>

Subject: cool: software patent thread

Greetings,

The following is a (slightly) edited thread on software patents that took 
place recently.  Reposted here with permission of the participants.

---snip---

Date: Thu, 26 Jun 2003 10:14:29 -0400
To: art-at-scumpa.com (Art Mellor 617/899-2360)
From: "Erik J. Heels" <info-at-heels.com>
Subject: patents, FSF, BSA
Cc: info-at-heels.com, phschmidt-at-alum.mit.edu

Greetings,

I was talking at an open source conference in Maine 
(http://www.heels.com/000190.html) [last week].  Stallman was a speaker, as 
was the FSF's general counsel, Eben Moglen.

When I was invited to talk on the topic "Software Patents, Good or Evil," I 
asked, "Which side do you want me to take?"  Because I can argue both 
sides.  I wrote a series of 7 notes on my site about it, which you may find 
interesting.

1) The FSF (Free Software Foundation)

In any event, I think that the FSF has done its cause a disservice by 1) 
embracing copyright law and relying on it in the GPL and 2) ignoring patent 
law.  (And I'm not a big fan of the GPL, primarily because it doesn't use 
the same language as the Copyright Act, but that's another story.)

There are lots of bad software patents, in part because the USPTO primarily 
searches PRIOR PATENTS when it is searching for prior art to render an 
application unpatentable (due to non-novelty or obviousness).  So the best 
way to defeat software patents is to file for software patents, even if you 
don't plan on enforcing them.  Even if your software is no longer 
patentable (because it's been in use or on sale for more than a year), you 
can still DISCLOSE it in an application for a new software invention.

Let me give an example.  A client of mine chose long ago not to file for 
patents on its electronic equipment.  A Japanese competitor routinely takes 
their products, reverse-engineers them, patents them, and then asks my 
client for licensing fees.  This cycle has been going on for 20+ 
years.  Many of my client's inventions are no longer patentable, but they 
do have something that they could patent.  And in that application, they 
could disclose ALL of their non-patentable inventions to put an end to this 
cycle (since the inventions would be discovered - hopefully - in the 
USPTO's prior art search).

[At the conference,] I freely admitted my pro-patent bias since this is how 
I make my living, but I also acknowledged that there are other 
options.  Such as busting patents and putting non-patent references into 
the "file wrapper" of existing patents.  The FSF's general counsel refused 
to even consider that filing patents was an option.  I argue that non only 
is in AN option, it's the BEST option, since non-patent prior art submitted 
by third parties to the PTO will NOT be searchable in the prior-art 
databases.  (File wrappers are not currently searchable.)

I think that I agree that the software industry as a whole would benefit 
from the elimination of software patents, but that's not the reality in 
which we live.  Until that day comes (and I think that it never will), 
filing good software patents is the best way to eliminate bad software patents.

2) The BSA (Business Software Alliance)

The BSA counsel called me an anarchist after I declared that I am on a 
mission to be Microsoft-free by the end of the year.  The BSA's entire 
pitch was based on the notion that the market should decide between 
proprietary software and open source software and that such decisions 
should not be made on pre-conceived notions about how the software was 
developed.

The "anarchist" comment was made to me one-on-one, after I pointed out a 
wonderful irony.  You may be aware that Oregon is considering a bill that 
would give open source software an a competitive advantage 
(http://www.oregonlive.com/business/oregonian/index.ssf?/base/business/1049461116217020.xml) 
as are other governments (including foreign governments).  Stallman stated 
that governments should be free to make choices that are in the best 
interest of their citizens and allow them to operate as efficiently as 
possible.  I pointed out the irony of the FSF calling for "efficient 
government" in the context of open source when in ANY OTHER CONTEXT 
(privacy, security, encryption, criminal law), their rhetoric is decidedly 
against government efficiency, and the fears of an efficient government 
usually conjures up images of the KGB.

So copyright law is good, patent law is bad.  Efficient government is good 
in the context of open source, but is otherwise bad.  Got it.

I gave three examples of why Microsoft finally pushed me over the edge:

         a) Office XP came bundled with my laptop, even though NOTHING in 
my Dell order indicated this was the case.  Bundling hardware with software 
should be illegal.  It's like bundling furniture with a house.  Real estate 
agent to home buyer: "Here's your 70s-era house with your 70s-era 
furniture.  We know, the shag rugs are hideous, but you don't have to use 
this furniture.  You can put it in storage or burn it.  But you can't give 
it away, and if you sell it, you have to sell the house."  Shrinkwrap 
contracts should be illegal, and I think that every judge that has touched 
this issue has got it wrong.  I spent four hours on hold with Dell (not MS) 
who told me that there was no option but to accept the pre-installed Office XP.

         b) Office XP cannot read Word documents created in 1997.  So 
anyone who thinks that they have "standardized" on MS Office is in for a 
nasty surprise.  Eventually.  And good luck getting support.  MS offers no 
support.  Dell has no clue.

         c) A "routine" Windows XP auto-update corrupted my registry so 
that QuickBooks (which I use for billing) no longer recognizes that IE is 
installed.  The failure mode is that QuickBooks will not launch.  I found 
lots of other people with this same problem, and there was a work-around 
that enables QuickBooks to launch without the GUI.  But that problem 
remains unfixed to this day.  Compare/contrast to my problem with GNU 
Mailman, which wasn't playing nicely with my new version of Sendmail.  I 
searched, found the problem, and implemented the solution.

I was also very critical of the BSA's "software grace" program 
(http://www.heels.com/000176.html), which the BSA told me has now been 
discontinued, in part because of criticism like mine.  And their audit tool 
which requires you to enter your address and e-mail address in order to 
download.  Yeah, that's gonna happen.

So I was basically critical of the FSF and the BSA because neither is 
living in the real world, but in their own versions of reality which have 
little or nothing to do with how people create and use software.  Or how 
laws are made and changed.

It was the most fun I've had at a conference in years.

Regards,
Erik

---snip---

Date: Thu, 26 Jun 2003 10:33:21 -0400
From: "Peter H. Schmidt" <peter-at-liftingmind.com>

To: info-at-heels.com
Cc: art-at-scumpa.com, peter-at-liftingmind.com
Subject: Re: patents, FSF, BSA

Nice summary writeup. You didn't mention my primary reason to abandon
MS: their EULAs are an IP land grab in that any time you transmit - or
fail to prevent the default behavior of their tools in transmitting -
any information to them, *it becomes their property*.  All they agree
to do is not disclose it in a way that personally identifies you.

Well gosh, I should think not!  If they've acquired proprietary info
from me in such a manner, I would think they sure *wouldn't* want to
let anyone else know that.  But they can go ahead and use it to their
advantage in any way they choose.  The hubris of that is breathtaking,
and they will tell you with a straight face that they do this so they
can provide you with "better service."  When has M$ ever provided me
with ANY service???

Oh yeah - if you reset the defaults in the multiple places you have to
make the changes so that the tools won't transmit data to them
automatically, they stop working.  Try it with Windows Media Player.

They're giving the people bread and circuses.  We'll see how long they
can keep it up...

....P.
-- 
Peter H. Schmidt                               Lifting Mind Inc.
peter-at-liftingmind.com    _/  Speaking  \_      2 Ewell Avenue
www.liftingmind.com       \ for myself /       Lexington, MA 02421
fax: 781 863-8858                              tel: 781 863-5200

        Problem: Friction locks cause throttle levers to stick.
	       Solution: That's what they're there for.
	      -- USAF maintenance squawk and resolution

---snip---

Date: Thu, 26 Jun 2003 10:41:14 -0400
To: peter-at-liftingmind.com

From: "Erik J. Heels" <info-at-heels.com>
Subject: Re: patents, FSF, BSA
Cc: art-at-scumpa.com, info-at-heels.com

Greetings,

I figured you'd mention it in your reply.  ;-)

But you didn't mention the best argument against software patents (which, 
by the way, one cannot find in all of the anti-patent rhetoric on the 
net).  Namely, that software patents give large companies a marketing 
advantage and differ from patents in general in that the software invention 
process is generally less expensive than invention processes in 
general.  Therefore, one of the reasons for patent protection, namely 
providing some sort of ROI for inventors for their R&D expenditures, does 
not apply for most software inventions.  And so the model itself is 
fundamentally flawed.

I am preparing an anti-shrikwrap anti-EULA piece that will include a 
do-it-yourself common-sense software license.  I think I'm going to call it 
ING, short for ING's Not GPL.

Regards,
Erik

---snip---

Date: Thu, 26 Jun 2003 11:11:55 -0400
From: "Peter H. Schmidt" <peter-at-liftingmind.com>

To: info-at-heels.com
Cc: art-at-scumpa.com, peter-at-liftingmind.com
Subject: Re: patents, FSF, BSA

The other part of why the system is broken re: software patents is
that they generally fail the un-obvious test.  The first programmer
with access to new hardware capabilities will create new software to
use them, but should that be patentable?  In general, I would argue
no, since anyone skilled in the art would create equivalent software,
given the same opportunity.

The examination process in theory would screen out such applications,
but it doesn't in practice because there aren't enough examiners and
they aren't skilled enough.  THAT won't be fixed because the current
system works to the advantage of the big companies who buy influence
with Congress via campaign contributions, so Congress isn't going to
fund the necessary expansion of the PTO.

Plus, there's pressure for U.S. examiners to be no more stringent than
ones in other countries so as to not disadvantage big U.S. companies
versus big Japanese or European ones.  And the examiners in other
countries want to grant lots of patents to their companies to close
the IT gap with the U.S., so they won't be strict.

The net result is a system where big money companies can buy
themselves lots of patents and use them to maintain their relative
positions vis-a-vis each other, but squash any upstart that starts to
make real inroads versus them.  This is somewhat bad for society since
big companies are quite poor at commercializing innovation compared to
startups; however, the effect is mitigated by companies that follow
Cisco's example and acquire small companies for their innovations.

Of course, all the expenses of filing and defensively litigating
software patents do enrich patent attorneys.  To the extent this does
not promote a benefit to society from enhanced rates of innovation
penetration, that's a deadweight loss: money that could have been
spent on something which increases everyone's standard of living is
instead wasted in wrangling with no useful outcome.

This system completely fails to serve the vast majority (98% or so) of
software companies that have less than $1M in annual revenues.  They
exist only at the whim of the big players, who can use their IP
portfolios to stomp them at will.  This makes them serfs, though they
may not be aware of it.  I find that objectionable on principle.

But money talks, so no change is likely anytime soon that will do
anything but further advantage the big money players.

--P.

P.S. if you're blogging this, feel free to post my responses...
-- 
Peter H. Schmidt                               Lifting Mind Inc.
peter-at-liftingmind.com    _/  Speaking  \_      2 Ewell Avenue
www.liftingmind.com       \ for myself /       Lexington, MA 02421
fax: 781 863-8858                              tel: 781 863-5200

All 50 states are listed across the top of the Lincoln Memorial on the
			back of the $5 bill.

---snip---

Regards,
Erik
--
Law Offices of Erik J. Heels     Try Our IP Law Newsletter
2 Clock Tower Place, Suite 255   * Patent Law
Maynard, MA 01754-2545           * Trademark Law
Phone: 978-823-0008              * Copyright Law
http://www.heels.com             http://www.giantpeople.com

NOTE:  This e-mail message is not legal advice, and no attorney-client 
relationship has been formed as a result of this e-mail exchange.  See 
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