31 October 08. In regards to In re Bilski
[PDF version]
The ruling for In re Bilski is out. We had all hoped that it would
resolve some long-standing questions on the patentability of software,
but instead it is merely the prelude to a debate.
This was an en banc ruling, where the patent on a business method
was struck down 9-3. That alone shows us that the Court of Appeals for
the Federal Circuit is not a bunch of pro-patent fanatics--especially
the majority that aren't former patent attorneys.
The judges who do still believe that everything should be
patentable are in a dwindling minority. They don't have support at the
Supreme Court, they don't have support at the Patent Office, and they
don't have majority support in their own building.
OK, enough politics; on to the content of the ruling.
The primary contribution of the ruling is to sweep away much of the cruft
that has grown around this topic over the last decade, including several ad hoc inventions
of the very court that wrote this ruling. It arrives at a simple rule
for determining whether something is patentable: is the patent claim for a
machine or transformation of matter? If so, then it is patentable subject
matter. The overall ruling seems to congratulate itself over sweeping
away the cruft and getting to that simple, clear heart of the matter.
But it doesn't answer the question. All the cruft (which I'll discuss
further below) evolved as many separate parties tried to answer the
question of what is a machine. It's not an easy question. For example,
a mental process, which is definitely not a machine, could easily be
written down to a hard drive, which definitely is a machine. Is the
data-plus-drive amalgam a machine or just a mental process with an
off-the-shelf part added to get around a technicality? That's really the
billion-dollar question: when does an abstract algorithm become a machine?
Here's the answer from the ruling: “We leave to future cases the
elaboration of the precise contours of machine implementation, as well as
the answers to particular questions, such as whether or when recitation
of a computer suffices to tie a process claim to a particular machine.”
So the ruling explicitly states that it won't answer the key, central question.
On the positive side, the ruling does make progress. First, in throwing
out all that cruft, it threw out many of the excuses that people give
for software being patentable. Notably, it rejects the assertion that
any process of any sort can be patented. The machine-or-transformation
rule requires that the process either be fixed in the form of a certain
machine, or make a transformation beyond just multiplying numbers
together.
Despite claiming that all that matters is the machine-or-transformation
test, the ruling also bears in mind many other necessary conditions for
patentability, such as the rule that a patent may not
“wholly pre-empt” a law of nature or principle or mathematical
formula. Also,
if you wholly pre-empt a mathematical algorithm within some narrow
field of endeavor, the court rules that this is still a pre-emption. I'll
have a little more on this below.
There is the State Street rule that an item is patentable if
it produces a “useful, concrete, and tangible result,” which this
ruling explicitly dismissed. I always hated this rule, because it is
entirely vacuous, especially as the State Street court took pains
to interpret concrete and tangible broadly--and it's hard
to imagine a patent that is worth filing but is somehow not useful. If your patent
draftsman can't write up your patent to be useful, concrete and tangible,
it won't be hard to get a new one who can. But we now need to determine
patent-eligible subject matter by the machine-or-transformation test
presentend in this ruling, which is not vacuous, so State Street's
blank check for any process patent has been revoked.
The ruling pointed out that U.S. law has never had a “technological
arts” test for patentability. They did the right thing here, because
the phrase is impossible to define precisely. We're having enough trouble
defining the word machine; there's no benefit to shifting the debate
to the more vague and subjective word technology. Similarly, there's no point
in defining an exception to patentability like business methods,
the ruling states, because it'd be a waste of time to try to pin down
a definition of the excluded field.
On the key question of when information becomes a machine, the ruling
does provide some clues:
“First, [...] the use of a specific machine or transformation of an article
must impose meaningful limits on the claim's scope to impart
patent-eligibility. [...] Second, the involvement of the machine or
transformation in the claimed process must not merely be insignificant
extra-solution activity.” For more on extra-solution
activity, have a look at my law review
article
(PDF) that focuses
heavily on the idea.
In the earlier segment on pre-emption, we got what I take as a sample application of the
first of these rules: in the algorithm in the Supreme Court's Benson
case “... the limitations tying the process to a
computer were not actually limiting because the fundamental principle at issue, a
particular algorithm, had no utility other than operating on a digital
computer. [...] Thus, the claim's tie to a digital computer did not
reduce the pre-emptive footprint of the claim since all uses of the
algorithm were still covered by the claim.” The ruling gives other examples,
many taken from the Supreme Court, of cases where the computer does or
does not limit the algorithm in a sufficient manner to restrict
patentability (notably in Flook, where an alarm to measure
hydrocarbon temperature is still not sufficiently tied to the machine to
merit patentability).
The Benson example, which talks about limiting scope and pre-emption, and the machine-or-transformation rule
regarding how “the use of a specific machine ... must impose meaningful limits”
bear much in common. They indicate that if a computer is merely being
used as a transparent medium for the algorithm, then the patent is an attempt to
patent and wholly pre-empt an abstract algorithm, and is not a claim on a machine. If
the computer is not merely a transparent medium and is a limited use of
the algorithm, then the patent is for a machine.
Did my rubric in the last paragraph sound vague? As stated, it is, and it's
all this ruling leaves us. We have moved a little forward in the debate,
because the ruling has thrown out things like the “useful, concrete and
tangible” rule and done what it can to shut down the argument about a
technical arts test. It thus allows us to focus a little more closely
on the question of when an abstract work becomes sufficiently fixed to
a physical environment that we can call it a new machine. It provides
a few hints about how that measurement should be made, in the form of
a repetition and not-overly-narrow interpretation of pre-emption rule and
an emphatic repetition of the rule from two Supreme Court rulings that
extra-solution activity does not make something patentable. But
the key question itself remains unanswered and still open for debate.
[link][a comment]
15 July 08. How strict constructionism can be judicial activism
[PDF version]
Today's episode is a guest blog by Mr. BK of
Baltimore, MD
This is a note on the term `judicial activism', which is misused in
subtle ways among pundits and politicians.
The key to how it is misused is the ambiguity of the terms liberal and
conservative. I count five (5) distinct uses of these terms.
The first three are familiar to everybody. There's the liberal/conservative scale regarding
change in general, where the L team is forward-looking and the C team
seeks stability. There's the social scale, where liberals believe people
should be left to do what they want, and conservatives seek a social
order reminiscent of Norman Rockwell paintings. There's the economic
scale, where liberals believe some social services are necessary, and
conservatives seek smaller government.
These three scales are only tenuously related. It is easy to find
futurist social conservatives, social liberals for smaller government
(aka libertarians),
and any other combination of the above. But, with only the words
liberal and conservative used for all three axes, there's
a strong--and clearly false--implication that one who is liberal on one axis is
liberal on the others.
That said, let us move on to judges. Judges are often described as
constructionists or activists, as if there is a single axis along
which we measure judges. But as with liberal/conservative, it confounds a
couple of concepts and just creates confusion. So, let's make some
definitions.
There are two components to a law: the statute in
the Constitution or as passed by Congress, and the interpretation of the
statute by courts who had to contend with the law. One school of
thought, strict constructionism, contends that one should focus as
much as possible only on the statute as written, rather than subsequent
interpretation. Congress wrote what it darn well intended the law to be,
so why should later judges and pundits modify that intent?
The constructionist view bears much in common with the neoclassical
economist's viewpoint, that people are very rational and very capable of
forseeing the future. To the extent that this is correct, the
constructionist claim (that Congress wrote what it intended the future to
look like) works.
I work with patents, and patents are an excellent example of how
constructionism and the hyperrational assumption can go horribly wrong.
Thomas Jefferson wrote what is now 35 USC §101 (inventions patentable), and it
hasn't even been looked at since 1952. So:
did the 1952 Congress, or Thomas Jefferson, intend that web page
designs should be patentable? Even the Psychic Hotline would have
difficulty with such a question, yet a strict constructionist has a
simple answer: yes, they did intend so, because they would have said so
otherwise.
The alternative is to look at more recent rulings and try to conform
with those. My impression is that this is the modal type of judge: they
try to rule in conformance with the law, but that includes equal
measures constitution/statute and recent rulings. Let us call this the
developmentalist approach; some call it the activist approach.
The language typically used sets constructionist = conservative and
activist = liberal.
As an aside, the constructionist view toward the U.S. Constitution is
often characterized as interpreting the constitution the way the
Founding Fathers intended it. But this is an incorrect phrasing.
Jefferson again: “No society can make a perpetual constitution, or even
a perpetual law. The earth belongs always to the living generation.”
[Letter to James Madison, 6 Sept
1789]
The statement `I am a strict constructionist, because
I interpret the law the way a set of developmentalists did in
1776' is somewhere between incoherent and ridiculous. Rather, the sane
strict constitutional constructionist generally shoots for a direct reading of the
words as written, outside of the context of colonial times.
This is legal Latin for “to stand by
things decided”. That is, if judges past have decided that the law of
the land is X, then ya don't change it to Y unless there's a darn
good reason.
Different judges interpret the phrase darn good reason
differently. Some overturn past rulings at the drop of a legal hat;
others steadfastly stand by the past rulings, and just mumble something
about `it's a bad law, but it's Congress's job to change it' in rulings
that they aren't happy writing.
There are two pairs of terms used to describe a judge's
attitude toward stare decisis. The first is
liberal/conservative and the other is
constructionist/activist, and once again, both pairs of terms don't
correspond to any of the above uses of these terms.
There are four possible combinations of liberal/conservative in the
context of statute and stare decisis, and it's worth going over
all four, because they reveal an important asymmetry.
It may happen that the law as currently interpreted differs significantly
from the law as written. This is common for a law written decades ago,
due to simple drift in conditions and legal understanding. The first
option in this case is to be a statute liberal and a stare decisis conservative.
That is, a judge could be a conservative in the sense of maintaining
the status quo.
When there is a difference between the status quo and the original statute
from times past, it is impossible to simultaneously be conservative with
regards to both. Of course, this doesn't keep many judges from trying.
The next possibility is for a judge to be liberal with regards to both
statute and stare decisis. Such a judge really is just making up
the law. You won't find a judge anywhere who claims such a position,
though there's endless debate as to whether some judges act like this.
Therein lies the asymmetry between liberal and conservative:
conservative on both scales is OK but usually impossible, but liberal on
both scales is an abuse of judicial power.
The next option is to be a statute liberal and a stare decisis conservative.
There are people like this in many contexts: folks who insist that the U.S.A. once had a decidedly Christian
government (a claim that is itself up for dispute) and therefore the
present government should be devoutly Christian as well; folks who
insist that the only good music is the kind they heard in high school;
folks who insist that all families must consist of a mother, father, and
at least two children because that's how it had to be on the farm.
Such people are radically liberal, in the sense that they oppose the
status quo in favor of something different, which happens to have been
the status quo at one point in the past.
Judges of this type are often called judicially conservative. Yup, a
judge who rules for changing the status quo when faced with a conflict
between statute and rulings is called judicially conservative, and a judge who
prefers to maintain the status quo is typically called judicially liberal.
It's things like this that make people learning English as a second
language hate it so much.
Figure One: To revert to the means of judging in times past would be a radical, jarring change from the present. (Painting credit: Raphael: The Judgement of Solomon, c. 1518-19)
Patent law is a good example of judicial conservatism/status
quo liberalism. The circuit judge who decided that software and business
methods should be patentable (Judge Giles Rich) was very vehemently
constructionist in citing statute and reading it as literally as
possible. As such, he was massively activist, because he overturned a
century's worth of stare decisis, including several rulings from
the Supreme Court.
You know I am not happy with Judge Rich's ruling, but there are other
cases of activist constructionists, the most salient being those who ruled
in Brown v Board of Education, whom we all love to death. So even
after we have acknowledged that the scales of liberal/conservative
with respect to statute and liberal/conservative with respect to
stare decisis are entirely different scales, and after we've
pegged a judge on both, we still won't know whether their rulings are
liberal/conservative with respect to the social and economic
scales that people actually care about.
The term activist judge
has been
bandied about by certain individuals, invariably as a derogatory term, but without clarifying
to which of the above two sometimes contradictory definitions the speaker is referring.
But the confusion is typically deliberate, and implies that any activism
in the sense of interpreting laws based on judicial understanding must
be of the radical form of arbitrarily revising law.
The activism question often comes up in judicial hearings as
well, where judges often attempt to characterize themselves as strict
constructionists, implying that this is a good thing. But it seems
preeminently clear that a good judge makes an effort to balance statute
and recent rulings in every situation. The Constitution just doesn't say
anything about computer-generated
pedopæliac images, so
for a judge to claim that he considers only the constitution in deciding
such an issue is to say that the judge feels at liberty to just make
stuff up.
Not to accuse President Bush of simplistic thinking, but to say that
any judge that does not strictly follow statute is rewriting the law is
simplistic. Such a claim only works when the law as written is entirely
and perfectly appropriate to all situations, even decades later--and
remember that a case appears before a higher court only when there is
some sort of open question, ambiguity, or controversy about the law as
written. Thus, any high court judge that isn't braindead is an activist
in the first sense of re-interpreting statute as written; if we insist
that that means activist in the sense of inventing law, then we can only
conclude that all judges are activist in the derogatory `hijacking the
law' sense used by folks such as the guy linked above.
But why be abstract when we have an easy example? The term `activist
judge' is the term preferred by people complaining about gay marriage.
The big ruling in the gay marriage issue was Goodridge v Department
of Health, which was the ruling in Massachusetts that allowed same-sex
civil unions--and did so via an allegedly strict constructionist
reading of the equal protection clause in the MA constitution, no less.
With regards to statute, there is clearly ambiguity because nobody ever
bothered to strictly define the meaning of marriage, just as Jefferson
didn't specify whether web pages should be patentable.
You could ask what the word marriage meant in 1776, in which case
you'd probably find gay marriage was not intended by the law--and neither
was marriage between whites and nonwhites.
As for overturning stare decisis, I'm no expert on MA marriage
precedent, but giving a casual look `round, I am unable to find
claims that Goodridge was in contradiction of past court rulings.
For so many claims that this is an activist court, you'd think somebody
would find the ruling that they were supposedly contradicting. Rather,
marriage law in the U.S.A. has been a slow slide toward disaggregating
marriage into a series of social services (especially given the strict
interpretation of the “no establishment of religion” clause in the
Constitution), and Goodridge fell right into that by interpreting
the civil union as such a bundle of social services.
So what we get here is that the court in Goodridge wasn't actually
activist at all in either the statute or stare decisis sense. It
read directly from the MA constitution using a plain English understanding of
the language about equality under the law, and did not seem to disagree
with past court rulings. So we conclude what many of you have probably
been thinking all along: that the term `activist judge' in this context
really is just a polysyllabic way of saying `socially liberal'.
Now, there's a specific reason for conservative rhetoricians to confound
all five axes and claim that liberal on one means liberal on the other
four, which returns to the asymmetry discussed above: if a judge is
liberal on both judicial axes at once, then that judge is just making up law.
This is the crux of the implicit argument in the term `activist judge'.
If we start with the false premise that a judge who is liberal on
one axis is also liberal on all four other axes, then we get the false
conclusion that all socially liberal judges are just making up the law,
and so the only good judge is a socially conservative judge.
[link][a comment]
21 April 08. The legality of absinthe
[PDF version]
I finally got some absinthe last week.
There are many types. Like many liqueurs, it is basically just an
infusion of a few pleasantly-flavored plants in grain alcohol. Being
grain alcohol, it is about 50% alcohol by volume, but you water it
down.
Now, when watering it down, it goes from grain alcohol clarity to the
opacity of milk. This is fun, and there is a little ritual built around
the process, typically involving a sugar cube perched on top of the
glass. Having a ritual associated with a social beverage is a big perk,
and probably has had some hand in making absinthe so popular.
I also have a full tea set, and get great enjoyment from the
process of pouring water from the kettle to the teapot to the
ocean of tea to the sniffer cup to the tea cup.
But you know the real reason absinthe is famous: wormwood, which has a
chemical known as thujone. I have no idea what the effect of thujone is
on the human brain; I get the impression that nobody else does either.
Some commenters have said that it's something of a stimulant, so
absinthe is a bit like having a black Russian (i.e., vodka + coffee),
but I'm not sure if even this much effect has verifiable evidence behind
it. As above, it's 50% alcohol straight, is watered down, and is heavily
spiced, which all adds up to being able to drink a lot of alcohol
without tasting it. Having such an easy means of drinking quite a bit of
booze without knowing it is already enough of a recipe for loopy
behavior, without recourse to obscure chemicals.
Absinthe was a scapegoat of the temperance movement, and was banned in
both the USA and Europe. I don't have the exact history--the USA
obviously spent the `20s banning a lot more than just absinthe--but
as we rolled in to the new millennium, thujone was banned (sort of)
in both the USA and EU.
You may have read that absinthe is now legal in the USA. What changed in
the law?
Nothing. Nothing at all.
My favorite textbook on labor theory.
The most credible source I've found to this point has been
an egghead-oriented site on mind-altering substances named
Erowid,
and this
interview
with a lawyer involved with an effort to import absinthe into the USA.
From what I gather, thujone is banned, but the test used for checking
for thujone is not very sensitive, which opens the question of what to
do with beverages with low thujone levels; the decision was eventually
made that they are OK.
Beyond the thujone issue, the Alcohol and Tobacco Tax and Trade Bureau (TTB) felt that the word
absinthe was a drug term, and therefore could not be used to sell
a product. This was basically an arbitrary opinion of the bureau, and
was eventually arbitrarily reversed.
With those roadblocks eliminated, absinthe was once again legal for
import and sale.
The anecdote is an interesting demonstration of how often law is
entirely unclear. We like to think that there's a list of regulations
out there, and they tell the world's bureaucrats what to do or not do,
and it's all very simple. In most cases, it really is that simple. But then
there are those other cases where it's hard to tell exactly where to
draw the line, or what authority the individual bureaucrat has.
After all, Congress (or the head of any organization) can't possibly
dictate everything that every bureaucrat all the way down the chain
will do with his or her hands. In any organization, the top
sets broad rules, and grants limited authority to the individuals at the
lower levels who will make up whatever needs to be made up along the way.
The patent office is especially prone to the conflict between top-down
law and bottom-up rulemaking, because patents are a technical field
and most of the distinctions to be made are fine line-drawing rather
than night-and-day. Under the clearest of rules, we would expect that
some applications would still be considered novel and non-obvious by
one examiner and rejected by another.
Further, patent law is, more than other fields of law, decided by judicial
rulings, not by the U.S. Code. Congress hasn't bothered to touch the law
for patents in any significant way since 1952, and you can see why from
the massive, ineffective effort that has been the Patent Reform Act of
2008. Instead, we have centuries' worth of rulings, each about a single
test patent (sometimes several), and a resulting rule based on the test
patent regarding how to draw the line between the patentable and
unpatentable. Judges try to be careful, but it's common enough that two
rulings will contradict each other.
Naturally, there are many efforts and mechanisms to create
standardization, and there is largely one patent law. For example, there
is a Manual of Patent Examination Procedure (not written by anybody in
Congress or the courts) that examiners are expected to follow with perfect
uniformity. But to a great extent, the concept of one patent law is just
a convenient fiction, and every examiner has a slightly different concept
of what's going on. As with the change in opinions regarding absinthe,
things can go from illegal to legal with just a change of opinion by a
bureaucrat somewhere along the chain. That's how it is with a law built
from the ground up on judgment calls like what is novel and non-obvious,
and how it always will be.
[link][no comments]
7 April 08. Independent invention
[PDF version]
Hi. I took a break to handle a few important matters, like
filing a brief in In re Bilski, catching up on numerous
important pieces of reading, and drinking lots of absinthe. More on that last
item next time.
Independent invention is not a valid defense against claims of patent
infringement.
And that, dear reader, is the Achilles's Heel of patent law.
This is not to say that all of patent law will inevitably suffer a
downfall to the Paris Convention?, but that the independent
invention problem is an important consideration that advises when patent
law is or is not appropriate.
By independent invention, I mean that a second party invents whatever a
first party had patented, without knowledge of the first party's
activity. The second party, without knowing that it had done anything
wrong, is liable for patent infringement.
From this NYT article: “It's rare that you've got a major breakthrough that wasn't developed by
multiple people at about the same time,” said Mark Lemley, professor of
intellectual property at Stanford Law School.
On both an ethical and economic level, liability for independent invention is a
problem. Imagine that you have put great effort into developing a new
technology, start marketing it, and then get a letter in the mail telling
you that another party has already obtained a patent on your work,
and you now owe them money for putting out the product you've developed.
There you were, minding your own business, not copying anybody, and now
you suddenly owe a stranger perhaps millions of dollars. Ethically, it
is hard to justify the justice of the situation.
In terms of promoting progress, if you know there's some chance that you
could be doing extensive research that winds up in a product that you
not only can't use, but which is a legal liability, then that's an
incentive to avoid exploring new technologies.1
There's an incentive to patent inventions that are likely to be
re-invented, because then you can sue the latecomer for $$$. But why
is the government providing ex post research grants for inventions that
are going to be re-invented by other parties without any government help?
Patents can promote progress, but not via liability due to independent re-invention.
There are common counterarguments to why the problem of independent
invention isn't really a problem. The first is that such a problem should
be marginal: one could think of the still-extant restrictions
on what is patentable (that it be novel and non-obvious) as basically
requiring that the invention be unlikely to be independently re-invented.
The obviousness standard isn't actually keyed to minimizing independent
invention, and I haven't seen anybody talk about making that happen,
so that doesn't get us far: examples of independent re-invention abound.
The other main argument is that the independent inventor shoulda known. We assume that
patents are in the public record, and therefore everybody in the field
should be aware of the state of technology. If you are a researcher,
it is basically mandated by law that you check in with progress at the
Patent Office on a regular basis. Corporations in patent-relevant fields
are well aware of this and accept it as a cost of business.
The presumption of public knowledge means that there is no opt-out
from patent law. If you are in a field that has patents, you can't just
say you don't care about patents, won't apply for your own, and won't
imitate products with a patent number stamped to their underside.
That's not enough to get you clear of the USPTO's influence, because you
could still independently invent a patented item and thus face
liability.
Now, in a prior episode, we saw
how little actual practitioners look at existing patents. They're legal
documents written for other lawyers, not practitioners. But in most
fields, the fiction that every technologist is following the patent
literature is evidently not particularly painful.
Oh, and patents are kept secret in the USA for 18 months. That way, if
an applicant wants to change its mind and keep its invention a trade
secret, it can. There's a never-ending debate about this one. On the
one hand, this option makes for a hard choice if you don't get an initial reply from the patent office
until after the 18 months have passed (which is perfectly possible given
the current backlog). On the other, some think that it's silly that we
have to wait even 18 months, because in 17 months, a company could invent
something and begin marketing it widely, and then get hit with liability
(or at least major business hassle and costs) even though the company
followed 100% of the rules. That is, even this relatively short secret
period exacerbates the problem of independent invention.
By the way, the disclosure rule is an attempt to harmonize with other
countries' laws, so if you promise to not file for patents in other
countries, you can have the USPTO keep your invention secret right until
the final patent granting perhaps several years in the future.
So liability from independent re-invention is an unpleasant side-effect
of the system, that is hard to justify both ethically and economically.
If you could design our patent system all over again, you'd probably want
to take care to ensure that the likelihood of independent re-invention
is minimized.
What if the `industry' is everywhere? Literature is written by lots
of people all over the place. There's no literature convention where
everybody has to meet up. It's downright silly to expect that every
novel author is abreast with the works of every other, even within a
narrowly-defined genre. If storylines were patentable, we would
certainly see a long stream of lawsuits against defendant authors who
had never heard of or read the work of the plaintiff author. There
simply aren't enough patent attorneys to handle the amount of due
diligence that would be required to verify that all of the stories
being written don't infringe an unknown patent.
What if there were only twenty storyline patents, and they were all really
awesome? Every one of them is stupendously inventive. Well, that
wouldn't change much, because every author would still have to check in
with a patent attorney to see if their new work happens to have hit upon
something patented. The attorneys would have an easier job, and could
stamp 90% of new storylines as non-infringing pretty quickly, but the
costs of a quick consultation with an attorney for every story published
in the USA would still be pretty astronomical.
The result, if storylines were patentable, would probably be that most people
just wouldn't bother to clear their work, and would just hope the risk
goes away. Some number of them would eventually independently infringe
even the most creative storyline, and the patent-holders would have an
easy time of finding infringing stories at the local bookstore. Lawsuits
would ensue. Lots of people would question why it is that we have
literature patents anyway. Patent attorneys would repeatedly state that
patents foster innovation, period, and refuse to hear discussion
otherwise.
That is that state of software patents.
The software industry is indeed massively decentralized: just about every
corporation in the country has an information technology department that
is producing software that is sufficiently innovative that it could
be infringing a patent. How do we know? Because there have been
software patent infringement suits against the Green Bay Packers,
OfficeMax, Walgreen's, Linens 'n' Things, the Washington Post, and a
host of others; see the End Software Patents project's litany of
lawsuits.
There are a number of potential resolutions, none of which point to
promoting the progress. The `shoulda known' approach would be to say
that if you have a web site, then it's your obligation to hire a patent
attorney to clear the site. Sure, there are a hundred million web sites
out there, but that just means that we need to have more patent
attorneys.
Another resolution would be to centralize all production. The trouble with
both the literature and the software market is that the only qualifications you need
for trying to write something is a cheap PC and a half-decent facility
with language.
Here's a father telling the story of how he helped his
6-year old write a new computer game.
We could fix the independent invention problem by
dictating that all work must be done by a centralized organization,
maybe IBM, and everybody else may have scope only to use the software in
limited, non-innovative ways. IBM
offers indemnification and has the legal staff to take care of things, and
as long as users everywhere else don't get a sudden urge to experiment,
everything is fine.
This may sound like a joke, but it is to some extent the logical
conclusion, and where we could wind up. As above, not everybody is going
to get sued. Instead, some get sued, and everybody else gets scared,
and eventually fires their IT department and re-hires it as an IBM-backed
consulting company that can offer indemnification. This outcome certainly
serves the legal industry and IBM well, but I'm not convinced that it promotes
progress or is what many programmers actually want.
I really don't know how to resolve the problem of independent invention
with respect to software, literature, or other activities that really just
require a brain and a writing implement. But it shows is that the mantra
“patents promote innovation” needs qualification. For example, there
are few people who truly believe that patents would promote innovation
in storylines or artistic works, and there are many contexts where
the trouble of independent re-invention swamps the research benefits
provided by a limited monopoly. It is much more reasonable to say that
patents promote progress in some contexts, but not all.
Footnotes
- ... technologies.1
- There is the
related idea of the patent race, that if you think others might
develop a technology, then you have a strong incentive to work harder
and develop it first. The hypothesis has many variables that are hard to
measure, meaning that I know of no empirical studies that find real-world
evidence that patent races help [add `em in the comments
if you do]. The theoretical literature is split, because having two
parties duplicating effort on the same problem is not necessarily
socially efficient.
[link][a comment]
10 March 08. A comparison of copyrights and patents
[PDF version]
The average person on the street will tell you that copyright is for
printed creative works like text, paintings, or musical compositions,
while patents are for functional physical devices and processes.
But here in the modern day, that basic intuition just doesn't match
up with the reality of U.S. law. The two regimes have been growing
closer over the last few decades, which means that the things that some
think of as the key distinction between the two are not much of a
distinction anymore, while other features are of increasing importance.
There are an awful lot of types of work that could be covered by either
system. In the absurdist plays section of my bookshelf, I've got a
copy of Endgdame by Beckett. Although it is
plain text, it is a series of instructions for actors, comparable to a
series of instructions for people on an assembly line. If you'd like to
excise words entirely, the publishers added a short bonus play, entitled
Act without words: A mime for one player. The stage directions
are text, but are entirely about how props or the actor should move,
to achieve a final goal which I take to be demonstrating
learned helplessness to the audience, but I'm sure Beckett had something
much broader in mind.
In fact, for any plain information, there is some sort of physical
medium upon which the information is recorded, be it a piece of paper, a
computer's hard drive, or your brain's neurons. In the last decade or so,
the U.S. courts have ruled that that physical medium makes the information
patentable. The key ruling on this one is In re
Lowry, which
is for a data structure on a computer. “More than mere abstraction,
the data structures are specific electrical or magnetic structural
elements in a memory.” There used to be a printed matter
doctrine that states that you can't patent a surface (paper, a ribbon)
just because the information written thereon is useful; Knight
(2004) argues that under current law, the printed
matter doctrine has been eliminated, and I agree.
Right now, the courts are scrambling to draw some sort of line to say
that tax loopholes, plays, and musical compositions are not patentable,
and I'm sure that six months from now such a line will exist. But in the
mean time, for things that could be expressed as text on some sort
of medium, the difference between copyrights and patents largely lies
elswhere.
Patents provide a limited monopoly for twenty years
from the date of filing.
The exact duration of copyright
has many conditions and exceptions, so here I'll just say that
it's in the ballpark of a hundred years. As we'll see below, it somewhat
makes sense that patents should expire much more quickly, because they
offer greater power.
The economic life of most works, fictional or functional, is under
twenty years anyway, so for most works the duration of both types of
protection is the entire economic life of the product. Many works do
shine for much longer than twenty years, but for most products we must
again look elsewhere for the big difference between patents and copyright.
I've seen many people state that copyright covers only
the literal text of a work, while patents cover the broad idea. Both
halves of that statement aren't quite correct. When
something could be covered by both copyright and patent, the scope of
the two forms of coverage are increasingly convergent.
On the copyright side, consider fan fiction. Many people enjoy writing
stories based on their favorite fictional characters, usually involving
some number of them fornicating with each other. They use the name and
characteristics of characters from a published work, but every other
word in the text is entirely their own. There is minimal literal
copying, if any. The lawyers call this sort of thing a derivative work, and it violates copyright as much as would a direct
copy of the original work. See the Chilling Effecs Fanfic
FAQ
for examples and
details.
So the scope of copyright is a little more patent-like than
it is often made out to be. In a software context, if party B sees party
A's code written in FORTRAN, and then produces a similar program in Java,
then party A has decent odds of claiming the Java code is a derivative
work and therefore infringing copyright. This sort of dispute sometimes
crops up when employees jump from one company to another.
Meanwhile, patents don't cover pure ideas, but their implementation.
This is good because it allows future designers to re-implement the same
idea using new methods; this is known as inventing around a
patent, and is generally credited as a positive side-effect of patents,
because future designers are forced to think hard about a problem
where they otherwise would have just copied the other guys.
So patents are not for ideas, but the current implementation, which
sounds roughly like the scope of copyright.
For software, the implementation is very broadly construed, because courts
have ruled that the actual process of writing code is a “mere clerical
function.” It's not often that a ruling insults an entire industry
of people; in this case doing so even creates problems, because calling
working programmers a bunch of code monkeys and denying any creativity in
code design leaves little latitude to work around a software patent. But
in theory, if a patent should “wholly pre-empt” a mathematical
algorithm, then the courts say that it shouldn't be granted.
So for a product that is primarily expressed in text, the differences
in breadth of coverage between copyright and patent are not nearly as
large as many make it out to be. Neither is intended to cover solely the
literal text as typed by the original author, and neither is intended
to cover the underlying ideas.
Copyrights are automatic: the text you are
reading is copyrighted by the simple act of my writing it down.
The Library of Congress offers a registration system, but works
aren't examined in the process, but just catalogged and possibly shelved.
The Patent Office, however, tears patent applications apart. The
examiner is expected to find the prior literature, determine exactly how
the application differs from the prior literature, determine whether the
application's improvement is obvious to a person having ordinary skill in the art, and
otherwise run the application through a long series of tests.
Finally, we have a night-and-day distinction between the two systems.
The distinction means that copyrights are going to be a lightweight system, in the
sense that the Library of Congress has one not-very-large department
devoted to administration, gaining a copyright is literally costless
(and full registration is on the order of fifty bucks), and no lawyers
are involved. Patents are at the other extreme: the number of patent
examiners is constantly growing, patent applications go through several
layers of examination, and you can maybe do it for cheap, but don't expect
to get anything useful and enforceable out of the process without the
services of an attorney.
The difference in registration processes can partly be explained by the
different powers granted by a patent or a copyright, which brings us to
one more major difference...
You can only be held liable for copyright infringement if you have seen
a work and copied it. For most
copyrighted works, it's pretty easy to identify direct copying anyway--if you're writing
fiction about Superman and Wonder Woman going on a date, then you've
definitely been directly exposed to both characters as drawn by DC
Comics. If you worked at a company that writes programs for dentist's
office administration, and then quit and start up a business that sells
a program for administering dentist's offices, then your old employer
would have an easy time demonstrating your access to the original progrm
if the need arises.
Conversely, independent invention is not a valid defense against claims
of patent infringement. If your work matches a patent that you've never
seen or heard of, then you can be sued. It's that simple.
So copyright infringement requires direct imitation, while a patent
holder can sue people who have never seen the patent or heard of the
patent holder. This has major effects, which I'll pick up on next time.
Please note: full references are given in the PDF version
[link][no comments]
27 February 08. Disclosure
[PDF version]
One of the oft-cited stories behind patents is that they are a contract
for disclosure. The inventor could have kept her1 invention a secret, but the government offers her a deal that if
she reveals her technology so others can learn from it, then the government will give her a limited
monopoly for twenty years (from the date of application).
This is not a fundamental reason for patent law. It's icing. The
fundamental reason is the ex-post research grant I'd mentioned earlier.
Which is a good thing, because the disclosure story really only works in
theory.
Those of you in technical fields can verify this through introspection:
when you last worked on a project, did you first check the journals or
the Patent Office? Did it even occur to you to learn from patents?
You can search sites of technical working papers, like
arxiv.org, for patent references, and you'll
find a handful, but a handful of references out of hundreds of thousands
of patents is not very impressive. If the patent record were a journal, the
journal's impact factor would be right around zero.2
Firms in all industries tend not to search patent databases for technological
instruction. Arora et al.(2003)
state that “patent disclosures appeared to have no measurable impact on
information flows from other firms, and therefore no measurable effect
on R&D productivity.” [p 17]
Arundel finds that “a consistent result in survey research on
the use of patent databases is that they are among the least important
external information sources available to firms.”
Campbell-Kelly (2005) wrote a paper whose title typifies
pro-software patent research: “Not All Bad: An Historical Perspective on
Software Patents.” His primary argument for why software patents
aren't all bad is that patents set a disclosure requirement.
But disclosure is even less functional in software than for general
industries.
For example, Campbell-Kelly cites
the algorithm for LZW (Lempel-Ziv-Welch) encoding
as a success story for patents.
However, as Campbell-Kelly notes, Terry Welch had published
the algorithm in a peer-reviewed journal within a few months of applying for the
patent, but years before receiving it Welch (1984).
If Mr Welch had truly wanted to keep the LZW algorithm a trade secret
should patent protection be unavailable, then he would have waited for
the ink on his patent application to dry before publishing the algorithm.
In Northern Telecom v. Datapoint,3the CAFC ruled that writing source code--in fact, authoring anything more detailed than the broad
flowchart describing the overall logic of the design--is a “mere clerical
function.” So the court has stated that the requirements for patents
(what they call the enablement requirement) are not much more than
you can find by poking at a copy of the program for a while.
Mann and Sager (2005) interviewed software technologists
and found that the apathy toward learning from patents revealed by the
general surveys is evident in software as well: “...none of
the startup firms to which I spoke suggested a practice of doing
[patent] searches before beginning development of their products.” [p 1004,
italics in original.]
And gosh, have you ever looked at a patent? It is a terrible way to
teach others. I've read many a debate where some people
having ordinary skill in the art look at a patent and declare it obvious and
generally idiotic. Eventually, a patent examiner pipes up that the
document is written in a technical language that laypeople outside the
patent field are not trained to read. Looking at any patent, you can see
that this is definitely true. It'd be difficult indeed to have a document
that is both a legal declaration of
a limited monopoly and a technical document for teaching fellow engineers.
The teaching part takes a definite backseat to the legal declaration.4
So the disclosure story is an interesting theoretical anomaly: it makes
intuitive sense on a broad scale, but we know both from looking around and
from careful analysis of survey data that the broad intuition just doesn't
play out here in the real world. And yet people keep referring to it,
because the broad concept makes sense.
So I won't mention disclosure further, but will stick to the other,
actually functioning, stories for why patents exist.
Please note: full references are given in the PDF version
Footnotes
- ... her1
- Following a suggestion by Thompson (2001), I have
chosen the gender of representative agents in this book by flipping a
coin.
- ... zero.2
- Now, patents themselves cite prior patents all the time. Patent
attorneys, as opposed to inventors, are no doubt learning up a storm
from the patents they are reading all day long. But to say that patents
are intended to educate attorneys writing other patents is ingrown logic, to
say the least. There's still that disconnect between the people writing
and learning from patents and the people who are at work developing new
technology.
- ... Datapoint,3
- 908 F.2d 931, 940-41 (1990).
- ... declaration.4
- It is possible that after a patent is
granted, the author then proceeds to produce a journal article. But you
need a story beyond economics for why the journal article is getting
written. No patent is a perfect monopoly, so the more
information you give your competitor, the more power they have to invent
around your work. So there are stories where disclosure plus journal
publication work, but they partially advocate against the entire concept
of patents (because the typical inventor really wants to show off and
score publications) and I've seen no evidence that they dwarf the
lack of evidence of benefits from disclosure up there in the main text.
[link][2 comments]
|