Noel: Please define, tell me, what does the phrase “assertive right” mean??? Please translate the phrase “refuse finding of equivalence” into something I can understand. Usually when I hear this type of phraseology, the actual undiscolosed intent is to diminish an existing right. I hope you will help me with understanding what Lemley and Cohen are proposing.

Steve, Lemley and Cohen propose a bold step, as it calls for an “assertive” right” that would rid any interpretative ambiguity that might deter reverse engineer patented software. Mike, I stated that eliminating software patents “would not simply rewind time,” as that would be impossible. Of course, if we get rid of software patents, we’ll end up with a patent policy similar to that we once had. Yet the unintended consequences I speak of after eliminating software patents doesn’t just relate to how industry would innovate without these patents, but to the transition of over 100,000 patents suddenly having no status. The most difficult aspect of Napsterizing software patents, besides IBM losing mass royalties, are whether other forms of IP or contracts can sustain cross-licensing agreements, and whether the USPTO can identify exactly what are software patents.

We know exactly how the software industry would work without software patents: the same way it worked for the first 30 years of its existence. Again, I’m enthralled by anyone who knows how innovation works. The full-fledged private technology sector didn’t thrive before the 1970s. A lot of funding came from the US Govt through procurement and federal contracts. I’d take a later time period, perhaps the 1980s, as a milestone on which to reference a point of time where the software industry thrived without patent protection. We can speak more about this later…

Whether it’s politically feasible to eliminate them, and how best to manage the transition, are of course difficult questions. It may be that for practical reasons eliminating them is too difficult to be attempted. Tim, this is Lemley’s point, and one I believe we agree on but in different terms.

do software patents promote the progress of science and the useful arts? I contend that they do not, and I have yet to find anyone who makes a coherent and well-informed argument to the contrary. Tim, often policies serve functions for which they were not originally intended. Sometimes their value lies elsewhere than why they were conceived and implemented. To propose eliminating software patents because you can’t find proof of how well they serve their doctrinal justification, without considering their secondary benefits and without direct proof of negative consequences leaves a lot unconsidered.

If you’ve not found any justification for software patents, also consider that you aren’t providing any arguments against them. I’m more inclined to look at MikeT’s arguments, because he speaks from the perspective of a programmer with valid concerns. Since you’re on the public policy side, you have to make coherent “policy” arguments.

You worry about things being “rewound back to the 1970s,” but I’m here to tell you that there really haven’t been many advances in core areas since then. It’s not even been that long that ethernet hardware has been a common, needed feature of PCs and that technology is now about 27 years old. Your fear is already happening, even with a robust patent system.

You worry about things being “rewound back to the 1970s,” but I’m here to tell you that there really haven’t been many advances in core areas since then. It’s not even been that long that ethernet hardware has been a common, needed feature of PCs and that technology is now about 27 years old. Your fear is already happening, even with a robust patent system.

I started to read your response but didn’t finish it. You lost me at the beginning of the third paragraph.

The Inc article is aimed at businesspeople, not policymakers. The current generation of policymakers is virtually hopeless with regard to IP reform. The best we can hope for from these clowns is gridlock.

1. the number of patents being issued is not an indication of innovation.
   
   
2. Cohen and Lemley imply that patents foster innovation yet the examples seem to prove the opposite, large corporations quashing upstarts. For example “Microsoft has asserted patents on a popular video file format to block distribution of an open source version developed by reverse engineering.”(Page 21)
   
   
3. I particulary disliked their recommendation for limited reverse engineering Without reverse engineering we would not have the competition between Intel and AMD.
   
   
4. If I understand the phrase “refuse finding of equivalence” a whole new form of frivilous lawsuits would be allowed. Lets assume that the light switch has not been invented yet. John invents the light switch. Now Jane invents another form of light switch using a different technology. The court however finds that Jane infringed on John’s patent since it functionally accomplishes the same equivilant action of turning on a light. I hope I misunderstood this statement.
   
   
5. My belief is that patents are no longer actually about fostering innovation rather they are about claiming a piece of turf for purposes of extorting revenue.

http://www.inc.com/magazine/20060801/let-your-guard-down.html

Also, here’s some info about a much-loathed software patent that I don’t believe you’ve written about in the past:

http://noedupatents.org/

I think you need to read what I write more carefully. You claimed that eliminating software patents would have “many unknown implications.” I was just pointing out that we have plenty of experience with a patent-free software industry, so there’s little reason to worry about unintended consequences. And software patents were introduced in the 1990s, not the 1970s.

There are lots of people who have made the case against software patents. Here is a succinct case against them that’s been around for 15 years. Can you point me to any articles or studies that specifically respond to these arguments? If there are, I have yet to find them.

Similarly, if software patents were a good idea, someone should be able to point me to at least one example of an indisputably meritorious software patent. Yet after months of looking at patents, I have yet to find one. Nor have the software patent advocates I’ve encountered been able to point one out. It seems to me that suggests there might be a problem.