Tech Policy Weekly from the Technology Liberation Front is a weekly podcast about technology policy from TLF’s learned band of contributors. The shows’s panelists this week are Jerry Brito, James Gattuso, Tim Lee, Adam Thierer, and Derek Slater of the Electronic Frontier Foundation. Topics include,
- The FCC issues a notice of inquiry into net neutrality
- The latest on the NSA’s warrantless eavesdropping program
- Verizon’s patent suit puts Vonage on the verge of bankruptcy
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The other thing that occurs to me as I study Verizon’s patents is that patent law presents some huge problems from the standpoint of the rule of law. We libertarians frequently hammer home the importance of having laws that are clear and predictable. On network neutrality, for example, we point out that no one has been able to come up with language that unambiguously elucidates what is and isn’t allowed.
Yet every single patent is a miniature government regulation. If the FCC had issued regulations that looked like this, we libertarians (myself included) would be kicking and screaming about how unfair it is to expect people to comply with such vague requirements. Yet Vonage has had to stake the future of its company on correctly predicting how the courts will interpret phrases like:
software running on the central processing unit, causing the server to formulate and transmit a reply to a query for translation of a name specified in a second protocol received via the interface, wherein the software controls the central processing unit to include an address of a destination terminal device conforming to the first protocol associated with the name if the server receives the query for translation within a predetermined time window.
…and it goes on for pages and pages. That’s as bad as anything you’ll find in Snowe-Dorgan.
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I’m doing a story on the Verizon-Vonage case, and the more I think about the patent system, the more trouble I’m having believing that anyone could seriously support the Federal Circuit’s current patent rules.
So Verizon won its case on three patents, two of which were almost identical. So we’ve got this one, which seems to cover the concept of converting an IP address into a phone number. And then we’ve got this one which seems to cover the concept of making a wireless phone call via the Internet.
I want to step back from the specifics of the case (the Federal Circuit may or may not reverse the ruling—although even if they do, it won’t halp if Vonage has already declared bankruptcy) and ask what possible policy rationale there could be for granting patents like these. Why would we want to set up a system that in principle allows the first person who figures out how to hook the PSTN up to packet-switched networks to have a 20-year monopoly on that market?
Even if we had some insanely innovative guy who in, say, 1992, invented the first VoIP application, and even if at that point no one else had ever thought of sending voice calls over the Internet, I still don’t understand the policy rationale for banning anyone else from developing VoIP software until 2012. Even if it was wildly innovative, novel, and non-obvious in 1992, the shear march of technology would have rendered it obvious long before 2012. Hell, today I suspect most competent CS grad student could develop a perfectly functional VoIP application in a matter of weeks using off-the-shelf programming tools. What’s been holding it back is a lack of infrastructure, not any mysteries about how to write the software.
So somebody explain the argument to me. How does giving a single company a monopoly over an emerging Internet technology—even a company that really is years ahead of its time—good for innovation?
Fine-tuning patent law (as I have argued here and here) is a task the Supreme Court is best suited to handle, and the Leahy-Hatch / Berman-Smith Patent Reform Act of 2007, introduced yesterday in the Senate and House, thankfully is silent on some of the more contentious patent reform issues. According to Rep. Howard Berman (D-CA),
There are a number of issues which we have chosen not to include in the bill primarily because we hope they will be addressed without the need for legislation. For instance the Supreme Court recently resolved questions regarding injunctive relief. In that category we include amendments to Section 271(f) and the obviousness standard as both issues are currently before the Supreme Court. If either of those issues are not resolved, Congress may need to re-evaluate whether to include them in a patent bill.
Click here for Rep. Berman’s web page containing the text of the proposal and a section-by-section analysis. A very quick initial read indicates that a number of the ideas in the Congressional proposal sound okay in theory but could in practice lead to more uncertainty and new forms of abuse.
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A very interesting essay from Paul Graham on software patents, including the argument that patents for hardware also constitute patents on algorithms.
Over at Ars, I cover the European Commission’s new report advocating the creation of a new set of patent courts to unify Europe’s patent system:
The report argues that European competitiveness is hampered by its limited use of patents compared with Japan and the United States. It notes that Americans and Japanese both file more patents per capita than due Europeans, and speculate that Europe’s unwieldy patent system is holding back innovation.
However, the report pays little attention to the possibility that too much patenting could be an even bigger impediment to economic growth. The report devotes only one short paragraph to patent thickets, patent trolls, and other problems created by low-quality patents. It doesn’t offer any concrete recommendations for ensuring that the European patent system avoids the problems now being encountered in the United States.
Nor does the report address the risk that creating a separate patent court will lead to a judicial system that is too sympathetic to expanding the scope of patents. Some observers argue that’s precisely what happened in the United States. They note that since Congress created the Federal Circuit in 1982 to hear patent appeals, the scope of patents has been greatly expanded. Software and business method patents have been legalized, and the bar for obviousness has been dramatically lowered. Some speculate that the large number of former patent lawyers among the judges of the Federal Circuit are one reason for this shift—lawyers who have devoted their lives to patent law will naturally be sympathetic to arguments for expanding the scope of the patent system.
Tech Policy Weekly from the Technology Liberation Front is a weekly podcast about technology policy from TLF’s learned band of contributors. The shows’s panelists this week are Jerry Brito, Drew Clark, Hance Haney, and Tim Lee. Topics include,
- Patent reform looms large on the D.C. agenda
- What does the FreeConference controversy have to do with net neutrality
- A new e-voting bill makes the rounds
There are several ways to listen to the TLF Podcast. You can press play on the player below to listen right now, or download the MP3 file. You can also subscribe to the podcast by clicking on the button for your preferred service. And do us a favor, Digg this podcast!
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With the release of the most recent discussion draft today, one thing is immediately clear: this third version of the General Public License can be simply written “GPL v.” – where “v” stands not for “version” but for “vendetta.”
There’s little doubt that this GPL 3 draft is a vendetta against the patent non-assertion agreement we saw in the Microsoft and Novell deal. But it is also aimed at the use of technological protection measures like digital rights management. This may not upset the fundamentalists at the Free Software Foundation, but here’s something that I think will concern them: GPL code will become more isolated and less relevant in the technology marketplace.
Turning the Four Freedoms into the Ten Commandments
The GPL 3 draft is no longer just about protecting the four freedoms. Instead, it preaches about what can’t be done with software – thou shall not use DRM, thou shall not partner with proprietary software companies, etc. The draft contains provisions that block the use of anticircumvention technologies and patent non-assertion agreements. It’s the patent provision that attempts to strike a dagger at the heart of the collaboration between Microsoft and Novell.
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Given the sudden rush of interest on patent reform, with two excellent pieces today referencing Irwin Jacobs’ recent talk here at Heritage, I thought I’d provide a link so you can see it for yourself.
Enjoy.
The patent system “has overall worked very well in encouraging innovation and, particularly in our case, in allowing us to grow to a significant company,” remarked Qualcomm co-founder Irwin Mark Jacobs at the Heritage Foundation last week. To many, the patent system works too well. Our present system awarded a patent for a garbage bag that looks like a pumpkin, for example. Someone else patented a method for swinging on a swing. Jacobs acknowledges patent quality is critical and wants Congress to allow the Patent & Trademark Office to retain all of its user fees, but warns that other reforms could have unintended consequences.
Besides ending the diversion of some $90 million in PTO fees to fund other government programs, the chairman of the House subcommittee responsible for intellectual property, Rep. Howard L. Berman (D-CA), also wants to “improve patent quality, deter abusive practices by unscrupulous patent holders, and provide meaningful, low-cost alternatives to litigation for challenging patent validity.”
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