Tuesday, October 2, 2012

A copy of my comment from Judge Posner's recent blog

Here in the USA, we live in an environment where traditionally there have been patents and copyrights.  This legal tradition has encouraged a culture where innovation is valued, because innovators have reaped the rewards of innovation.  In cultures where innovation was not rewarded, innovation was not valued in the same way.  As a result of the culture established here, due to strong intellectual property protection, the USA has traditionally had the best science and engineering in the world.

Software people cite the early progress in the software industry, when patent protection was either not available or not sought, as evidence that patent protection is not necessary.  This is a fallacy.

First, those software people worked in this culture that had engrained encouragement for innovation that came from our history of intellectual property protection.

Second, there was quite early on a strong move for at least copyright protection to help out those innovators.  Early copyright cases quickly started talking about protecting "structure, sequence, and organization," to try to extend protection as broadly as possible.  This was a bit of a stretch in the law, but it showed a recognition of the importance of rewarding those who created economic benefit to the country.

Problems with software patents have continued because at first the United States Patent and Trademark Office refused to hire patent examiners with a computer science background, so poor art searches were performed.

More problems have been created because the original Supreme Court  case on this topic, Gottshalk v Benson, has severe logical flaws and a nonsensical result.  I encourage people to read my brief in the Bilski case for more discussion of that.  My brief is up on my blog.

The nonsensical opinion in that first case has resulted in extensive legal uncertainty and much litigation, leaving the entire field of patent protection for software unsettled for almost half a decade.

Have nots always want to take from haves.  People who don't have money want to take money from people who do.  People who don't have houses want to take housing from people who do.  People who do not have intellectual property want to take it from those who do.   I find this ethos repugnant.

Patents need to be whole heartedly endorsed by statute and the entire line of cases stemming from Gottshalk v Benson needs to be overturned.  

Moreover, the idea that mathematics is not an invention also needs to be overturned.  

No comments:

Post a Comment