I’ve been thinking a fair amount about software patents the last couple of weeks. I recently attended a Brookings Institution conference that focused pretty heavily on software patents, and since then I’ve interviewed several sharp patent scholars in preparation for a forthcoming article. In those conversations, I noticed the same cultural gulf I blogged about on Techdirt last week. You might say that on the subject of software patents, lawyers are from Mars and programmers are from Venus.
I think there’s a universal human tendency to over-estimate the importance of whatever you happen to be an expert on. I know lots of geeks who believe everyone and their grandmother should use Ubuntu, vi, git, RAID, and so forth. A lot of economists believe that the rest of the social sciences would be better off they all started using the methods of economists to do their jobs. When we develop human capital in some particular field, we tend to get a corresponding emotional investment in that field.
So when a programmer thinks about software patents, he’s interested in improving the software industry. Given how screwed up software patents are, a lot of us go straight for the most direct and elegant way to accomplish that objective: excluding software from patentability. In contrast, when a patent lawyers thinks about software patents, he’s interested in fixing the patent system. From that perspective, abolishing software patents looks like a horrible hack, because the underlying problems that caused software patents to be such a mess are probably responsible for problems in other industries too.
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Tech policy aficionados should by now be familiar with efforts to reform the patent system. Issues range from fixing the poor quality of granted patents to instituting post-grant review procedural reforms. What you don’t hear much about are efforts to educate judges on patents. Because no matter how much patent law is reformed to increase patent quality on the front-end, we’re still going to see patents being litigated in court.
That’s why I’m happy to see today’s reintroduction of Rep. Adam Schiff’s and Rep. Darrell Issa’s bill, HR 628. The bill creates a pilot program to educate participating judges on patent law and the technical matters underlying patent claims in Federal District Courts (HR 628 is the same as last session’s bill HR 5418). Here’s my analysis of the bill from when it was introduced last session.
Judges have considerable power to affect a trial. They make procedural and evidentiary decisions, and often a judge’s decision at trial can only be overturned on appeal if there was an abuse of discretion (a high burden for an appellant to meet).
HR 5418 is a targeted pilot program and its effect could be substantial, if not immediate. Better informed judges can weed out frivolous claims more quickly while focusing on cases with legitimate claims. As a result, anticipated and actual costs of enforcing and defending lawsuits decrease, reducing the burden on all parties but particularly the budgets of small firms. Less money for lawyers means more money for innovating, so firms can increase their research budgets and returns on investment.
If you’re in the DC area (and not at Cato’s important counter-terrorism conference that starts this morning) I hope you’ll consider attending two DC-area events I’ll be participating in. First, tomorrow I’ll be tag-teaming with fellow TLFer Jerry Brito to give a Hill Briefing on network neutrality. The talk will be designed for Hill staffers, but it’s open to the public and you’re encouraged to come and ask us softball questions.
Then on Wednesday, I’m going to be a panelist at a Brookings Institution conference on the limits of abstract patents. Also on panels will be some of my favorite patent law scholars, including Ben Klemens (an organizer of the conference whose excellent book I discussed here), Jim Bessen (whose book I reviewed here), Peter Menell (whose Regulation article I discussed here), and John Duffy (with whom I often disagree: I criticized him here but loved his work on appellate competition). It promises to be a great conference on an important topic.
My piece about the U.S. Chamber of Commerce event last Friday on U.S. intellectual property attachés giving a report, and taking a hard line, on the enforcement of U.S. intellectual property, overseas, is now live on ip-watch.org.
Here’s the first couple of paragraphs:
WASHINGTON, DC – Nations ranging from Brazil to Brunei to Russia are failing to properly protect the intellectual property assets of US companies and others, and international organisations are not doing enough to stop it, seven IP attachés to the US Foreign and Commercial Service lamented recently.
Meanwhile, an industry group issued detailed recommendations for the incoming Obama administration’s changes to the US Patent and Trademark Office.
The problems in other nations extend from Brazil’s failure to issue patents for commercially significant inventions by US inventors, to an almost-complete piracy-based economy in Brunei, to an only-modest drop in the rate of Russian piracy from 65 percent to 58 percent.
The attachés, speaking at an event organised by the US Chamber of Commerce and its recently beefed-up Global Intellectual Property Center (GIPC), blasted the record of familiar intellectual property trouble zones like Brunei, Thailand and Russia.
But the problems extend to the attitudes and omissions of major trading partners like Brazil, India and even well-developed European nations, said the attachés.
[more at http://www.ip-watch.org/weblog/index.php?p=1387….]
I attended the Federal Trade Commission hearing about the state of intellectual property on Friday, and wrote a piece about the event, “With US Patent Overhaul Dead, Agencies Ponder Changes As Industry Debates Role Of ‘Trolls’.”
The piece appeared in ip-watch.org, the excellent Geneva-based publication run by my friend and former colleague William New. Those of you who aren’t familiar yet with ip-watch.org should definitely begin following it: it’s a must-read for practitioners, advocates and activists concerned about all forms of intellectual property.
The Federal Trade Commission has announced that it will hold “a series of public hearings beginning on December 5, 2008, in Washington, D.C., to explore the evolving market for intellectual property (IP).”
It’s timely, then, that we will be having a forum Monday on a provocative book whose thesis is the title: Against Intellectual Monopoly. Co-author Michele Boldrin will present the book, and Rob Atkinson of the Information Technology and Innovation Foundation will critique it.
Highlighting one of the issues at Monday’s forum, the Arts+Labs blog points to Atkinson’s testimony about the value of American intellectual property on the export market. Over 50 percent of U.S. exports depend on some form of IP protection, according to Rob Atkinson.
It’ll be a good, interesting discussion. Register here now.
The Federal Circuit significantly limited the patentability of software and business methods today. Mike Masnick at TechDirt summarizes the holding of the case as follows:
the court has said that there’s a two-pronged test to determine whether a software of business method process patent is valid: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. In other words, pure software or business method patents that are neither tied to a specific machine nor change something into a different state are not patentable.
I’m sure several of my TLF colleagues will have a great deal to say about this. Tim Lee has already written about this on Ars Technica:
The Bilski decision, then, is a clear signal that the pendulum has begun to swing back toward tighter limits on software and business patents. However, it remains to be seen how far the court will go in this direction. Bilski was a relatively easy case. The applicant made little effort to hide the fact that he was seeking to patent a mental process, something the Supreme Court has clearly said is not allowed. Therefore, the Federal Circuit’s rejection of this patent doesn’t tell us how it will rule when confronted with software or business method patents that are tied more directly to a physical machine or a transformation of matter. And indeed, the Federal Circuit reiterated that some software and business method patents are valid, so we are unlikely to return to the near-prohibition on such patents that prevailed until the early 1980s.
Thoughts?
It is commonly believed that intellectual property law in the form of copyright and patent is necessary for innovation and the creation of ideas and inventions such as machines, drugs, computer software, books, music, literature and movies.
But Michele Boldrin and his coauthor David K. Levine argue that intellectual property laws are costly and dangerous government grants of private monopoly over ideas. Their book “Against Intellectual Monopoly” seeks to show through theory and example that these legal regimes are not necessary for innovation and are damaging to growth, prosperity, and liberty.
The argument that intellectual property laws actually retard progress is a fascinating challenge to conventional beliefs about their foundations and utility. At the onset of the Information Age, the role of copyright, patent, and other legal regimes in the progress of science and arts is centrally important.
The Cato Institute will be hosting a forum on Monday, November 10th that will surely be an interesting discussion of the book with coauthor Michele Boldrin, featuring commentary from Robert Atkinson, founder and president of the Information Technology and Innovation Foundation.
Register here.
Arts+Labs, a new coalition “committed to a better, safer internet that works for both artists and consumers,” has written up Friday’s Cato Institute book forum on The Crime of Reason on their ArtLab blog. Author Robert B. Laughlin of Stanford University will present his book, then we’ll have comments from Tom Sydnor of the Progress and Freedom Foundation.
I’ve gotten a glimpse at the slides Dr. Laughlin will be using, and this Nobel laureate in physics also turns out to be something of an artist.
Join us Friday to learn what this drawing is all about.
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