My co-blogger Solveig Singleton has an interesting paper on software patents over at PFF. I found her arguments against abolishing software patents unpersuasive (more on that later, perhaps) but I thought her proposed solutions were eminently sensible. As she argued in her excellent amicus brief, she suggests that the bar for non-obviousness be raised to weed out trivial patents. I also think this is a great idea:
Another set of effective solutions would make the institutions responsible for the incremental development of patent law, the Patent and Trademark Office and the courts, more effective. The best way to do this is indirectly, by introducing an element of competition. More than one federal circuit should become involved in hearing appeals of patent cases; leaving the Federal Circuit alone to do the job means that difficult legal questions do not have the benefit of a contest of equals.
It seems to me that the problems with our patent system are at least partly a tale of regulatory capture. Congress created a special court in the early 1980s to deal with patent law. Understandably, presidents started appointing former patent lawyers to serve on the court. And, not surprisingly, those judges who used to be patent lawyers have taken an increasingly expansive view of where the patent system ought to apply.
Reshuffling the appeals courts so that the various federal circuits once again shared jurisdiction over patent appeals would restore some impartiality to a court that appears to have acted largely as a creature of the patent bar.
Of course, I
also think that the courts should refuse to allow patenting of software. But these reforms would solve problems that extend beyond software patents, so these are good ideas whether or not you think software patents should be abolished. The paper is short, sweet, and to the point, so I encourage you to check it out.
We learned back in August that I am not Timothy Berners-Lee, inventor of the World Wide Web. I am, in fact, a “shill from an ideologically oriented corporate funded think tank” who makes “fake arguments.” Now, we learn that there’s another Timothy Lee trying to horn in on the lucrative pundit-shills-named-Timothy-Lee business. This one claims to be “an Arizona native and member of the Arizona and California Bar Associations” and “director of Legal and Public Affairs for the Center for Individual Freedom in Alexandria, Va.”
It seems that the vast right-wing conspiracy has decided that one deceptively-named Timothy Lee is not enough. So they’ve been scouring the country for anyone named Timothy Lee who can string together two coherent sentences. That way, even if I get hit by a bus, they’ll be able to trot out this
new Timothy Lee to fill in for me, ensuring that there will always be a right-wing Timothy Lee to comment on technology issues. The Hands Off the Internet coalition is already doing their part to raise the profile of this new and improved Timothy Lee.
Mr. Lee, incidentally, has some reasonable things to say about franchise reform and network neutrality regulation, so I encourage you to check out his article in the Tucson Citizen.
Joe at Techdirt spots another example of every libertarian’s favorite fallacy:
Back in September, we noted that Microsoft had commissioned a study that tried to demonstrate how much of a boon the release of Vista would be to the European economy. The company bragged about the thousand of IT jobs that would be “created” due to people working on Vista installations. Of course, this was precisely the opposite of what the company should be touting. It would be far more impressive if they could anticipate how many existing positions in IT could be eliminated, freeing up workers to do jobs that produce more value than installing an operating system. Well, it sounds like the US is in for even more fun once Vista is released here. The company says it will create 100,000 jobs, and $70 billion worth of business. Put another way, companies will have to bring on 100,000 more people and spend another $70 billion to deal with the launch, if the figures are accurate. Why are they bragging about this again?
I think the basic insight here is correct, although it depends on what the workers are doing. If most of those 100,000 people are needed just to get Vista up and running, that’s clearly not something Microsoft should be bragging about. On the other hand, if most of those workers are engaged in (for example) creating new software products that rely on new features in Vista, then the number of workers employed might be a reasonable proxy for the amount of wealth created. In either event, Joe is clearly right that the number of workers required to administer a piece of software doesn’t tell us very much about how valuable it is.
I’ve got a new article up at The American about the Teleflex case:
It’s a familiar story: productive companies are forced to spend millions of dollars in court to defend themselves against trumped up claims. Most of these frivolous lawsuits fail, but the successful ones net eye-popping payoffs, attracting more ambitious lawyers in pursuit of ever-larger jackpots.
Of course, that describes the campaigns in recent years against the manufacturers of vaccines and breast implants. But it also describes the more recent flood of frivolous patent lawsuits that have plagued the technology industry. Last month, the Supreme Court heard oral arguments in the case of KSR v. Teleflex. The case presents the court with an opportunity to put a damper on abuse of the patent system, reducing a serious drag on one of our nation’s most productive industries.
One of the parallels between the tort reform and patent reform issues that I didn’t have space to discuss is the role of forum shopping. Just as certain southern states are known for administering “jackpot justice,” East Texas has become infamous as the go-to location for patent trolls.
The blogosphere was abuzz last week with discussion about Brink Lindsey’s essay about “liberaltarianism”–the idea of a fusionist alliance between libertarians and liberals, modeled after the conservative-libertarian alliance that brought you Barry Goldwater and Ronald Reagan. Julian has a good roundup here. And see Ezra Klein, Julian Sanchez, myself, Matt Yglesias, Ramesh Ponuru, Will Wilkinson, and Todd Zywicki.
It seems to me that this blog is in some ways a good example of the potential for left-libertarian solidarity. Much of what we talk about on this blog is at least as congenial to the left as it is to the right. We’ve got Adam attacking the FCC for bowing to the whims of the Parents’ Television Council and criticizing Congress for restricting online gambling. We’ve got Jim Harper attacking the national ID card and mocking elected officials for hysteria over terrorism. We’ve got me criticizing the NSA for its illegal surveillance programs (and blasting the GOP Congress for whitewashing it) and states for using insecure voting machines.
Continue reading →
Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. This week I look at a dispute between IBM and a company called PSI, which sells software to emulate the functionality of IBM’s mainframe computers. IBM filed a complaint requesting a declaratory judgment that, among other things, PSI’s software infringes several of IBM’s patents.
Here is the oldest of the bunch, “Program controlled rounding modes.” I’ll just quote from the patent itself:
In past architectures, rounding was provided either by means of a mode which controlled the rounding on all instructions, or by means of special rounding instructions. Each of these schemes has advantages and disadvantages. The mode has an advantage when a particular rounding mode is desired for an extended period of time. The special instructions have an advantage when a specific rounding is required for a single operation.
It would be advantageous, however, to have a machine which incorporates both a rounding mode and a rounding instruction.
Continue reading →
If you release a new game console, this is the kind of press you want to get. Check out this warning statement:
Even while wearing the wrist strap, make sure you don’t let go of the Wii Remote during game play and do not use excessive motion. For example, in Wii Sports bowling, the proper way to let go of the ball while bowling is to release the “B” button on the Wii Remote–DO NOT LET GO OF THE Wii REMOTE ITSELF. If you are having so much fun that you start perspiring, take a moment to dry your hands. If you use excessive motion and let go of the Wii Remote, the wrist strap may break and you could lose control of the Wii Remote. This could injure people nearby or cause damage to other objects.
Here is a whole website with pictures of things people have broken with their Wiimotes.
No word yet on whether there will be Congressional hearings about the problem–this seems at least as important as steroids in baseball.
Nick Carr has joined the ranks of the DRM skeptics:
Digital music sales, after growing strongly for a couple of years, appear to be losing steam this year. That, more than the particular EMI experiment, is the big news here. As the Journal reports, “The MP3 releases are coming as digital-music sales have stalled for the first time since Apple launched its iTunes Store in 2003. Digital track sales held steady at 137 million songs in the second and third quarters of this year, according to Nielsen SoundScan. That’s a slight drop from the 144 million sold in the first quarter.”
…Won’t selling songs as unprotected MP3s lead to rampant illegal copying? No. Because there’s already rampant illegal copying. Most unauthorized copying is done either through online file-sharing networks or by burning CDs for friends. DRM schemes have little effect on either of those. All new songs are immediately available on file-sharing networks, DRM or not. In fact, the Journal quotes one source as saying that the “pirate market … command[s] better than 90% of the online marketplace.” People buy through iTunes because they either don’t want to engage in illegal trading or can’t be bothered with the geeky aspects of illegal trading. It’s not because iTunes has removed the option of illegal trading. As for burning CDs to share, that remains easy even with DRM-protected songs.
No, DRM is about controlling the business model for selling online music. And if it looks like there won’t be much additional sales growth through iTunes, then music companies are going to start selling unprotected MP3s. In an iPod world, they have little choice.
Quite so. An interesting question is what the political implications will be if the labels start abandoning DRM en masse. The principal argument for the DMCA is that DRM is necessary to prevent rampant piracy. If the music industry tacitly admit that this is nonsense, will Hollywood soldier on, hoping that they can succeed where the recording industry failed? And if the RIAA stops using its lobbying muscle to block reform, will that make it easier to get legislation passed?
I’m reading through the transcript of the Teleflex case, and I think the level of hostility shown by the justices toward Mr Goldstein (arguing for the status quo) is remarkable:
MR. GOLDSTEIN: No matter what one thinks about the differential between Federal Circuit law today and Federal Circuit law a year ago or two years ago, there is a quite considerable cost by articulating a desire to head off in a new direction, because there will be dramatic instability in the patent system, the incalculable investments that underlie current patents. There is nothing fundamentally not functional about how the Federal Circuit is approaching this question. It has had decades to look at this to try and elaborate a standard. This court in cases like Sakraida and –
JUSTICE BREYER: And it so quickly modified itself.
JUSTICE SCALIA: And in the last year or so, after we granted cert in this case after these decades of thinking about it, it suddenly decides to polish it up.
MR. GOLDSTEIN: Justice Scalia, if you actually believe that, then you just don’t believe the judges in the Federal Circuit because in each of these opinions they say quite explicitly we are not changing it.
JUSTICE ALITO: Would you dispute that in some of the earlier cases, like Dembiczak with the garbage bag that looks like a pumpkin, that this TSM test was applied in a way that seemed to ask for something quite explicit in the prior art?
Between this and the exchange I quoted last week, you’ve got three of the four reliably conservative justices beating up on the federal circuit. And the fourth justice–Justice Thomas–almost never asks questions during oral argument. It seems like the right-hand side of the court is unhappy with the way the federal circuit’s been doing things. And judging from Justice Breyer’s comments, I’m guessing the left-hand side is too.
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