Over at the Volokh Conspiracy, law professor Sabrina Safrin is guest blogging about the development of intellectual property law, particularly patents, in light of patent-holder behavior. Her forthcoming law review article
argues that property rights evolve in reaction to each other. The creation of property rights for some engenders the demand for related property rights by others. These demands and resulting recognition of property rights may have little to do with the value of the resource in question or efficiency concerns.
Interesting idea, sort of a game-theoretic explanation for the recent explosion of patents, with an embedded suggestion that things are out of whack. Here’s Eugene’s introduction of her and her first post.
EFF linked to this summary of Microsoft v. AT&T which, unfortunately, completely misunderstands the thrust of the case:
AT&T’s position is that its speech recognition software is protected by US patent, on the grounds that it constitutes a “component of a patented invention.” Microsoft was apparently granted license to utilize that software in the US, but AT&T contends that the duplication of that software outside of US boundaries, with the intent to sell the duplicates overseas, is a violation of that license. That view was upheld by the Federal Court of Appeals, and Microsoft is appealing that decision…
Olson built a case against AT&T’s position: For foreign replication to work, a golden disk is shipped abroad to the replication service, containing the master of the Vista operating system that includes AT&T’s drivers. It’s not software at that point, Olson says, because no one can execute it. When it’s installed onto a hard drive, then it becomes software, and it’s the end customer who does that.
If you accept that argument, Olson’s case goes on, then Microsoft did not copy AT&T’s software. And since the physical components – the hard drive, processor, and optical drive – necessary for the copying process to happen may or may not have been supplied by manufacturers in the US, then US courts may not have jurisdiction anyway.
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SAN JOSE, February 26, 2007–Legislation to overhaul aspects of the patent system could take shape in as few as two or three weeks, said Rep. Howard Berman, D-Calif., chairman of the House Judiciary Subcommittee on Intellectual Property and the Internet.
“This is an issue that doesn’t break down on partisan grounds,” said Berman, adding that the technology sector’s desire to seek changes in patent laws has “created a groundswell, a strong momentum for reform, to make it the highest priority of our subcommittee.”
Berman, who was speaking at the Tech Policy Summit here, said that last Congress patent legislation died in a crossfire between the technology industry, which broadly supported changes, and the pharmaceutical industry, which opposed them. Berman said he had been pushing for changes since 2000.
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I’ve got a new article up at Ars on AT&T v. Microsoft:
The Software Freedom Law Center filed an amicus brief urging the court to take this line of reasoning even further. The courts have long held that laws of nature, abstract ideas, and mathematical algorithms are not eligible for patent protection. Software is nothing more than a description of a mathematical algorithm. Therefore, the center asks the courts to declare that software is not eligible for patent protection on that basis.
The brief, written by SFLC counsel Eben Moglen, argues that the Court of Appeals for the Federal Circuit, which has had jurisdiction over all patent cases since it was created in the 1980s, has gone off the rails in recent years. Moglen claims that the federal circuit has misread the Supreme Court’s precedents on the patentability of software from the 1970s and early 1980s in a way that removes almost any limit on the scope of patentable subject matter.
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Philips, one of the amici in Microsoft v. AT&T, demonstrates some of the same conceptual confusions as Seth Waxman did in oral arguments:
[Not] every computer program is a component of a patented invention. But a program that has the same technical effect as an electronic hardware component surely is. In particular, there are two factors that illustrate that executable software or firmware code is in fact a component of a patented invention.
First, executable code is distributed in its final form such that it cannot be changed. The software developer designs the software in the form of source code, and then fixes it in an executable form by compiling it. The act of compiling manufactures the executable code. In order to modify the executable code, it must be decompiled, modified, then recompiled–a process similar to using a sample to manufacture new copies of a gear. Although the software developer may allow the installer to customize certain parameters, the installer is not allowed to modify the executable code. For example, Microsoft requires original equipment manufacturers (“OEMs”) to attach a Certificate of Authenticity to each fully assembled computer system. This
certificate assures customers that they have acquired “genuine Microsoft Windows software.”
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I just read through this morning’s oral arguments in the case of Microsoft v. AT&T. It’s a fascinating case because it beautifully highlights the conceptual confusion that lies at the root of software patents.
The case involves a patent dispute between AT&T and Microsoft, in which AT&T claimed some Microsoft software infringed on an AT&T patent. They’ve sorted things out with regard to domestic infringement, but their dispute is over whether Microsoft is liable for infringement overseas. What happened is that Microsoft shipped a single copy of its software to an overseas distributor, who in turn installed thousands of copies of the software on overseas computers.
Under a 1984 revision to patent law, it’s patent infringement to ship the components of a patented invention overseas for the purpose of evading US patents by having the final assembly of the components occur overseas. AT&T claims that Microsoft is liable because its software was a “component” under the law. Microsoft counters that software cannot be a “component,” because it’s an abstract string of 1s and 0s. The component, they argued, was the individual copy of the software, which was created overseas.
The really illuminating thing about the oral arguments, for my money, is when the counsel for AT&T, Seth Waxman, contorts himself into pretzels trying to argue that software is more than just information:
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Mike Masnick draws a distinction I hadn’t given much thought to before:
Over at Computerworld, Mike Elgan has written up a great piece highlighting how the iPhone is a fantastic piece of innovation that really has very little new in it. As we pointed out when we questioned Apple’s claim to 200 patents around the iPhone, the multi-touch interface isn’t new and has been publicly demonstrated numerous times. Elgan points to that video as well as other examples of how almost all of the “new” things in the iPhone have actually been around for quite some time–but that what’s special about the iPhone is that it will really be the first time that such features and tools are available to the general public, and how it’s then likely to move those same features from research labs into all sorts of common computing applications. That’s great for everyone–but it’s about innovation, not invention, and it seems like the market can do a great job rewarding such innovation without resorting to patent-based monopolies.
If you think about it, Apple’s strength really doesn’t come from inventing things. I’ve been a Mac guy for pretty much my whole life, and so during college I was one of those people who’d watch the Steve Jobs keynote every year. Almost every time, my techie officemates would see a new Apple product and say “hey, there’s nothing new there. Linux has been able to do that for 6 months.”
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Scott Kieff, a law professor who works just down the street from me at Wash U, makes a novel (to me anyway) argument about the purpose of patents:
When patents are enforced with clear and robust rules, and backed up by a strong right to exclude, they serve an essential coordinating role in facilitating the complex process of getting inventions commercialised. Patents help get inventions put to use broadly and rapidly.
Bringing an invention to market requires coordination among many complementary users of that technology, including capitalists, developers, managers, labourers, other technologists, manufacturers, marketers and distributors. Patents help this diverse group act in a coordinated fashion in at least two distinct ways.
First, the right to exclude associated with a published patent acts like a torch in a dark room in drawing to itself all those interested in the patented subject matter. This beacon effect gets all the diverse individuals to interact with each other and with the patentee.
Second, everyone’s expectation that the patent can be enforced against anyone is exactly what provides these individuals with the required incentive to strike deals with each other. This bargain effect falls apart if everyone knows the patent can’t be enforced.
The profit potential associated with an enforceable patent incentivises everyone in the commercialisation process. Not least of all, for example, the promise of financial payoffs is what brings the essential capital investments to start and sustain businesses.
This argument has a certain superficial plausibility, but as I’ll explain below the fold, it runs afoul of Ed Felten’s Pizzaright Principle.
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Sigrid Fry-Revere makes some good points on biotech patents:
Self-determination and self-ownership are essential in a free society. Actual physical material such as tissue samples or actual genes taken from a person’s body should not be acquired or used without informed consent–that includes not using a patient’s tissue to develop and market cell lines or to develop and market medical therapies without the patient’s express consent. It is dishonest to provide patients with misleading consent forms. Some give the impression a patient’s tissue is medical waste that the hospital or doctor should be free to dispose of as necessary. Other consent forms acknowledge that a patient’s tissue may be used to gain knowledge but say nothing of the potential profits to be gained either from that knowledge or from the actual use of the tissue itself.
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The House has passed legislation allowing judges to volunteer to receive special training in patent law, after which, other judges could voluntarily defer to those judges when patent cases come along.
Better trained judges are a good thing, right? Not so fast, says Mike Masnick:
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