Linked by Thom Holwerda on Sat 30th Jun 2012 19:34 UTC
Legal Yesterday, we were treated to another preliminary injunction on a product due to patent trolling. Over the past few years, some companies have resorted to patent trolling instead of competing on merit, using frivolous and obvious software and design patents to block competitors - even though this obviously shouldn't be legal. The fact that this is, in fact, legal, is baffling, and up until a few months ago, a regular topic here on OSNews. At some point - I stopped reporting on the matter. The reason for this is simple: I realised that intellectual property law exists outside of regular democratic processes and is, in fact, wholly and utterly totalitarian. What's the point in reporting on something we can't change via legal means?
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Tony Swash
Member since:

Intellectual property is a good thing. Our current IP regime, however, is not. This isn't rocket science.

What is not clear is what you think the limits of the law on IP should be. The devil is in the detail. It's all very well saying current IP is broken or dysfunctional - OK - what should a working IP legal structure look like?

I get the impression that you don't like software patents at all, why? What in principal is different about owning the legal rights to a piece of code or software design compared to say owning the rights to a novel or a piece of music?

What about hardware patents? Are some OK but some not? In which case what are the dividing lines? Suppose someone sets up a company and makes shoes that look just like the latest Nike shoes and has a logo on them that looks very similar to a Nike logo and uses a product name similar to the Nike shoes? Should Nike have the opportunity to claim in court that their designs are being infringed? And if you can seek legal protection for the design of a pair of shoes why not for a phone or tablet?

It seems to me that product bans freak people out and Apple winning products bans really freak people out, including you Thom, and provoke generalised statements that sound plausible and principled but which obscure the fact that in the real world these issues are immensely complex and difficult. Generally the further away from the practical reality of a problem one is the easier it is to believe that there are simple solutions or that the issues are clear cut.

I personally think the current system of arguing the details out on a case by case basis through exhaustive legal actions in multiple courts in multiple jurisdictions is probably as a good a way to sort this sort of stuff out as one could find, tiresome though it is to watch. I think it is incumbent on those who say the current system is rotten to suggest what should be in it's place. How much of what sort of stuff should companies be allowed to copy and how and who should make the judgment of when thy have crossed the line?

Reply Parent Score: 1

lemur2 Member since:

I get the impression that you don't like software patents at all, why? What in principal is different about owning the legal rights to a piece of code or software design compared to say owning the rights to a novel or a piece of music?

A novel or a piece of music can be protected by copyright, but not by patents. There is no issue with software copyright ... if one wants to make a competing software product one should write one's own code rather than selling a literal copy of someone else's code, in exactly the same way that if one wants to be a best-selling novelist, one should write one's own novel and not copy the words of another writer.

No problem with that, copyright is fine as IP protection for software, just as it is for writing or music. Note that Android is not a copy of iOS, it is a work-alike. No, the problem is software patents.

Having software patents is akin to disallowing Harry Potter novels from ever being written because someone else had earlier written a novel about a young male wizard character named, say, Merlin growing up. No more lullabys ever to be allowed to be written except for the one by Brahms.

Insanity of the highest order, and totally inappropriate.

What about hardware patents? Are some OK but some not? In which case what are the dividing lines?

There are very reasonable dividing lines in European law:

The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
(d) presentations of information.

You will note that software is excluded twice since software is "programs for computers" and it also is "mathematical methods".

Suppose someone sets up a company and makes shoes that look just like the latest Nike shoes and has a logo on them that looks very similar to a Nike logo and uses a product name similar to the Nike shoes? Should Nike have the opportunity to claim in court that their designs are being infringed?

Now you are getting very confused indeed, and totally silly. You are talking now about another totally different IP law called trademark. Android does not infringe on Apple's trademark ... no one can possibly confuse a little comic green robot icon for an apple.

Edited 2012-07-01 23:59 UTC

Reply Parent Score: 6

Savior Member since:

No, the problem is software patents.

While you are right with respect to the question you answered, in the big picture, the other two IP systems, copyright and trademark, are flawed too.

Copyright lasts way too long. After the author's death? Why? How come people who had nothing to do with the work in question are entitled to royalties? My great-grandchildren won't get a penny from my current employer, and that's how it should be. Imagine if all companies had an obligation to pay your salary to your grandchildren, 70 years after you are gone. Plus extensions. And also in that time, nobody would be allowed to fill your job (OK, this last one is not entirely accurate).

Trademark is no better. From the Wikipedia page : "The Walt Disney Company currently has a trademark application pending with the US Patent and Trademark Office, filed November 19, 2008, for the name "Snow White" that would cover all live and recorded movie, television, radio, stage, computer, Internet, news, and photographic entertainment uses, except literature works of fiction and nonfiction."

So it's OK to write a story about Snow White, -- maybe not on the Internet, though, -- but creating a TV series or drama act is not? How can a company have an exclusive trademark for a name that was invented by someone else probably centuries ago, (two times, no less,) when even the copyright for the Brothers Grimm's book has long since expired?

(And sadly, judging from how they treat software patents, I have not a second's doubt that the UPSTO will grant the trademark.)

Edited 2012-07-02 07:33 UTC

Reply Parent Score: 4

ndrw Member since:

The ideal system is where there is no IP except for protection of secrets (personal data etc.) and protection against misinformation (for example with trademarks). We obviously won't get a chance to vote the current system out, partly because democratic process is dysfunctional, partly because the system is already fueling itself and simply doesn't depend on our votes.

The dividing line for patents? To me, it would be either no patents at all (if they do 99% harm and 1% good we won't be off by much) or weighting the cost of protection against the cost of secrecy (if the design is clearly visible, because e.g. it is slapped on top of the product, what's the deal for us in granting the protection?).

You don't need patents for product identification either - trademarks work just fine. Here, the purpose is to make sure the consumer is not being cheated into buying a different product he intended to purchase. I have no problem with consumers buying replicas as long as they know they are not the original product.

The only reason the current system is so complex is because we have intentionally made it so. There were almost no IP protection laws (as there was no IP itself) in our history, including periods of greatest growth of our wealth. Equally well we could make a law against unauthorized breathing - you would see multiple "moral hazards" there too, as many people would try to circumvent the system/licenses/what not.

Reply Parent Score: 2

Neolander Member since:

Let's start with three fundamental principles which I strongly hope we will agree on. 1/IP law is here to address the problem that creating new stuff comes at a cost and brings little rewards in itself, by offering various legal ways through which innovation can be indirectly financially rewarded. 2/This protection of existing innovation should not come at the cost of hampering future innovation by putting ridiculously high demands on new actors of a given market. 3/The legal protection of a given innovation should be proportional to the extent of the innovation that is being protected.

Given this, I can start to address your first question : what is it that makes software patents so dangerous as compared to the copyright that protects novels and music ? Basically, it's the granularity of each legal construct.

In most countries that implement copyright, there is a fair use clause in the law that states that people can freely copy, say, a few pages of a book, or 30 seconds of music. Such a legal provision is necessary because otherwise, people would be able to get IP protection on single language constructs (words, sentence, 5-tune musical arrangements), which are not innovative in themselves. This would violate principle #3, and ultimately principle #2 since innovators would end up stepping on copyrighted constructs by accident, allowing the IP owner to act like a dick and sue them for 5 notes of music.

Software patent law, however, often has no such clauses, which is made worse by the fact that patents apply to nonexistent products. It allows IP holders to patent language both figuratively (as in the case of multimedia codecs, which are languages that multimedia devices use to communicate with each other), and literally (as in the case of Apple's patents on single man-machine interactions such as slide to unlock, multitouch gestures, or scrolling mechanisms). Now, IP protection of language is a huge violation of #2, because new market actors come with a huge handicap if they have to spend years enumerating patents and pay absurdly large sums of money just to make their products work together with existing products and user habits. And even if you don't agree with this moral principle, basic concerns of usability and interoperability should have been sufficient to get this abuse of patent law outlawed. So far, probably due to financial pressure from big companies, it obviously hasn't.

In the case of software patents, the ability for market actors to patent language has already been greatly used in litigation (Unisys' patents on GIF, Apple's overlapping windows and touchscreen interaction lawsuits, Microsoft's FAT long file name patents), which is why the tech world is aware of that issue. But similar issues can also exist in hardware, as soon as you bring design patents to the mix. Individual features of hardware design, such as the use of specific materials or simple geometric shapes, can play just as much of a vital role in device engineering as language plays a role in man-machine and machine-machine interaction. Thankfully, I believe that the former is illegal. The latter, however, obviously isn't, since Apple managed to get a patent on what is basically a parallelepipede with rounded corners not so long ago (and as any hardware engineer will tell you, rounding edges is a vital feature of any device which does not want to hurt its users). Can you imagine what would happen if someone patented such a core element of everyday hardware as Phillips screws ?

So basically, when people say that they are against software patents, they are not necessarily against the concept that software should be able to receive legal protection like any other innovative kind of engineering work. They are maybe just against the current usage of software patents, which is to patent minor details of a product instead of patenting a complex whole (as in your example of a whole, existing as opposed to virtual, shoe design).

So basically, I suggest to outlaw any direct patent on language, whether it concerns man-man, man-machine, or machine-machine interactions (I'm actually surprised that this is not the case already, since we forbid patents on mathematics which is one kind of language), or alternatively to add a legal clause that allows any patent to be bypassed at no cost for the sake of interoperability.

Patent legislation also desperately needs coarser granularity like what is done in the realm of copyright, so that obvious details cannot be patented, but I'm not sure how this could be expressed in legal terms. An option could be to limit the amount of patents which a company, no matter how big it is, can hold, by making patent registration fees directly proportional to the income of the registrar. This would also be more fair to small market actors than the current fixed-rate model. However it would also require provisions against compagnies that create unofficial subsidiaries whose sole purpose is to manage patents and litigation (hello, Apple and Microsoft !)

Edited 2012-07-02 06:10 UTC

Reply Parent Score: 3