Software Writers Patently Enraged

[Markus Kuhn]

Adam Back wrote on 2002-04-13 15:48 UTC:
> What about suing the company that frivolous patent for the costs
> incurred in defending against it?  A successful suit along these lines
> might discourage companies from a) filing bogus patents, and b) using
> them aggressively.

No. I believe that this would not solve the underlying problem.
Companies come and go and should not be blamed for doing what their very
purpose is, namely to make profit and share it with employees,
preferably in a sustainable way.

The democratically sanctioned and legitimated patent system and its
institutions have to be addressed here. Their original purpose was to
support creativity and enterpreneurial risk taking. With regard to the
software industry (possibly also the genetics industry), it has become
apparent that they are doing more damage than good at the moment. We
have to come back to a point where a patent system as an institution
with costs and risks for society has to justify its purpose and benefits
for each individual area in which it is applied on a continuous basis.
It must not remain something that we run this year only because we had
it last year as well and international treaties bind us to keep it that
way.

This needs being fixed.

There is no lack of excellent proposals for solutions:

  - restrict patents to manufacturing techniques for tangigle
    commercial products, that is exclude intangible and non-commercial
    products (software, business practices, naturally evolved DNA basepair
    sequences, as well as any hobby, charity and research application
    of a patented manufacturing technique)

  - restrict the maximum licence fee that a patent holder can ask for,
    for example guarantee any manufacturer that the sum of all licence
    fees payable to independent patent holders cannot reach more than 1/4 of
    the price at which the manufacturer sells the final product. (1/4 sounds
    like a reasonably value to me, but I'm sure that a clever economist can
    draw up some nifty partial differential equations to justify a
    particular formula better, similar to those used today to optimise
    tax systems.)

  - ensure that demands for (restricted) licence fee payment is the
    only right that a patent holder is granted, that is prevent patent
    trading.

  - establish a procedure by which an advisory body to the patent office
    consisting of independent experts can suspend a patent merely on grounds
    that the enforceability of a patent is perceived to potentially
    significantly interfere with the development of critical infrastructure
    (for example standardization of compatible interfaces)

  - no single patent should last longer than 10 years (in areas such as
    the pharmaceutical industry, the there perhaps desirable research
    investment protection currently granted by the patent system could
    equally well be provided via tiny modifications to the rules of
    the already established product approval process).

Many of the undesireable outgrowths of the patent system (in particular
software patents and patent pool trading) have been exported by the US
via international treaties and agreements into the rest of the world.
The US has recently shown little respect for a number of important
international treaties (ABM, Kyoto, bioweapons, etc.). Time for Europe
to return this attitude via simply dumping some of the the WIPO and GATT
treaties and cutting back our own patent systems to an economically
justifyable extent (which after a proper benefit analysis might well be
zero)?

How long could the European economy continue to prosper if we dropped
patents entirely? 300 years? 500 years?

Markus

-- 
Markus G. Kuhn, Computer Laboratory, University of Cambridge, UK
Email: mkuhn at acm.org,  WWW: <http://www.cl.cam.ac.uk/~mgk25/>