I was invited to speak at the IT360 conference on Software Patents
and Open Source, which I did in the afternoon of April 9. While my slides are online, I believe it is worth discussing the presentation here for the benefit of those who did not attend.
I offered a few bullets as a summary.
- What is a patent, contrast with other PCT : most people are not
clear about the different types of intangible exclusive rights such as
Patents, Copyright, Trademarks, and the various related acts, so I
summarize them.
- Should software be patentable? : It is important to ask this
question, including having an overview of the history in various
countries and the different levels of exclusive rights offered to
software.
- Software patent issues specific to FLOSS : While it is
important to differentiate software from other subject matter, we also
need to ask just how different FLOSS is from non-FLOSS when it comes to
patents.
- How realistic are different types of threats? : People in the
FLOSS sector presume that Microsoft is the greatest threat to FLOSS as
they do the most sabre rattling, and I suggest this is not appropriate.
- Policy proposals : I knew there would be people from government there, so I offer some proposals
- Discussion
While I had discussion last, the session was quite informal and the entire hour was open for discussion.
I am not a fan of the term “Intellectual Property” for many reasons.
One is that it is confusing as it makes an analogy to tangible property
which confuses non-lawyers, and lumps together very different areas of
law. This is why many people in policy circles use the acronym PCT which stands for “Patents, Copyrights, Trademarks and other related rights”.
- Patent: applies to “art, process, machine, manufacture or
composition of matter” which are workable, new, and ingenious (useful,
novel, unobvious). You need to apply to get a patent, and patents are
then granted by the patent office.
- Copyright: applies to an expression of an idea. No
registration is required for copyright at this time, although there are
benefits to registration if you ever need to sue for infringement.
- Trademark: word, symbol or design, or a combination of these,
used to distinguish the goods or services of one person or organization
from those of others in the marketplace. This area of law was intended
to be a form of consumer protection, different than other areas of PCT
which are intended to provide incentives to authors and innovators. You
need to apply for and receive registration for trademarks.
- Also includes: Industrial Designs, Printed Circuit Topographies, Plant Breeder Rights, …
The discussion of whether PCT is similar to tangible property goes
back hundreds of years. I discuss Thomas Jefferson’s contribution to
the debate in 1813 in an essay Jefferson Debate: A Godwin’s law for copyright discussions? where I challenge property language used in political debates.
The generally accepted purpose of PCT laws is to create exclusive
rights to provide incentives for creativity and innovation. The idea of
creating a property-like system is that property law provides
incentives for investment in what is owned, so it has been presumed
that the same model will work for intangibles as well. Exclusive rights
working like a functioning property system encouraging investment needs
to be understood as a policy goal that needs to be analysed and
tweaked, and not an axiom that doesn’t need proof. Many of the failures
we see in practises are examples where this policy is failing to act
like a property system. For these failures to be fixed they needs to be
recognized as not only possible, but inherent in the differences
between tangibles and intangibles.
A recently released book titled Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk by James Bessen and Michael J. Meurer offers considerable detail on this argument, and is highly recommended.
Historically software was not patentable, and it is only recent that this changed.
The US Patent and Trademark Office (USPTO) fought software patents
prior to 1981. This changed after a 1981 US Supreme Court Case (Diamond
v. Diehr) which involved an industrial process for the molding of
rubber products, which included software. While this was not really a
software patent, but an industrial process that happened to include
software, this was seen as opening the doors to pure software patents
and then later to business model patents. Many of these decisions were
made by the US Court of Appeals for Federal Circuit which specializes
on patents, and is seen by many to be a biased interest group in the
debate about what should be patentable.
In Europe they had a chance to do things more recently, and specifically excluded “programs for computers” in article 52 of the European Patent Convention (1973.
This exclusion was reflected in the 1978 Examination Guidelines for the
European Patent Office (EPO), but changed the guidelines in 1985 to
interpret the exclusion list such that software patents were then
granted. Policy discussions are active as part of the proposed
Community Patent. The European software community does not trust EPO as
they ignore article 52 exclusions, and many practitioners feel that
software should not be patentable.
The Canadian Patent Act does not mention software, and has a very
minimal exclusion list which states that “27(8)No patent shall be
granted for any mere scientific principle or abstract theorem.” The
court case that is often mentioned is Schlumberger Canada (1981), which
involved the use of a computer to analyze data concerning soil
characteristic measurements for oil and gas exploration. This was yet
another example of a situation where a more traditional patentable
process happened to include software, but where the software was not
itself the subject of the patent.
The Canadian Intellectual Property Office (CIPO) sets guidelines for patentability in their Manual of Patent Office Practices (MOPOP).
This manual was updated in 2004 as a result of a closed “consultation”
that largely only includes special interest patent agents. You can read
about this consultation in the results from an Access to Information request I have posted online.
The new Chapter 16 on “Computer implemented inventions”
has language that would suggest that pure software is not patentable in
Canada, but it requires understanding a distinction that doesn’t seem
to be generally understood. The chapter includes the key phrase, “The
presence of a programmed general purpose computer or a program for such
a computer does not lend patentability to, nor subtract patentability
from, an apparatus or process.”
This should suggest that if you have a manufacturing process that
happens to include software, that the presence of the software does not
alone render the manufacturing process unpatentable. This would confirm
what was said in the Schlumberger Canada case, which did not involve
patents on software.
This should equally suggest that if you have a general purpose
computer and add software, that you still simply have a general purpose
computer and no additional patentable subject matter. This should deny
information and mental process patents, such as methods involved in
encoding or deciphering information (file format patents, codecs, or
other patents on computing interfaces, etc).
What has been happening is that a broad range of computer related
subject matter has been granted by patent offices around the world,
including information and mental process patents.
While the above answers the question of whether software is
patentable (it is in an increasing number of countries), it requires a
different type of analysis to answer whether this is subject matter
that should be patentable. I will continue this subject in the second
part, although people should feel free to dive into the discussion in
the comments. This article is largely background needed for a much more
interesting future discussion.