Subject: Re: termless copyright and patents
From: Thomas Lord <lord@emf.net>
Date: Mon, 25 Sep 2006 13:45:51 -0700

stephen@xemacs.org wrote:
>  > I can't figure out how to square your assertion there with the decision
>  > in Ebay v. Mercexchange.
>
> You're correct.  I can't justify that even as hyperbole.
>   

I've lost the cite but it gets even better.   In establishing public 
interest,
considerations such as practice and satisfaction of demand are relevant.
Woohoo.

But you're right (as you go on to say) that nobody should bet the farm
on Ebay v. MercExchange:

This thread inspired me to read a whole bunch of stuff the highlights of
which were some court decisions and some testimony before the FTC.
Here's my subjective impression:

1) E v. M is first, last, fundamentally, backwards and forwards nothing
    more than straight-up judicial restraint and classical exercise of
    jurisprudence.   It is an agreeable, conservative decision about the
    rules of the court -- not a principled stand on the topic of patents.
    Congress wrote that injunctions re infringement "may" be treated
    as "court of equity" cases.   That's what the courts had been doing.
    The lower courts both strayed from that and SCOTUS scolded them
    for it.   Pure and simple.   SCOTUS didn't say something like "software
    inventions are just math and therefore they aren't like physical
    inventions".    SCOTUS said "Congress tossed this, at our discretion,
    into the equity courts.  That's where it's been.  That's where it 
stays."
    (It was one of the overturned lower courts that made overreaching
    metaphysical claims about inventions-as-property.)

2) For every putz who tells the FTC how much wasted money software
    patents are costing his software company or how he was unreasonably
    screwed by them, there's a schmuck to tell the opposite tale.   They
    all appear more or less truthful and correct.  What's a regulator to
    do?

3) The economists are telling the FTC "Gosh, this is really complicated.
     There *are* real problems.  There *are* real benefits.   It's darn
     hard to invent a cure that's not worse than the disease."   One of
     the brighter themes in the testimony I was looking at (and, being lame,
     i don't have the cite handy) was advice to go back and look at the
     relation between patent law and anti-trust law.   For example, 
defensive
     portfolios essentially reward the companies standing off with them with
     a de facto license to create follow-on inventions -- that's a 
legitimate
     economic reward for holding patents.    Yet, at the same time, as
     is *sometimes* seen, these big boys de facto collude to exclude new
     competitors from their little oligopoly -- and that's just straight up
     predatory behavior.   It's the effect, not the principles behind 
the cause,
     that really matter, we are reminded.   That analysis harmonizes nicely
     with E v. M but may be discordant with some mandatory punitive
     damage provisions.

4) Nobody can define "software patent" well enough for legislative purposes.

5) Nobody seems to really mind the idea of shorter term patents for 
software,
    other than it isn't right in every case and, see (4).

6) Nobody calling for patent reform (except me!) is talking about how
    to make a system in which there is better incentive to invent 
because there
    is better incentive to get a patent under the suggested reform!

    Nobody (except me!).

    Bezos' argument is basically "Well, a business method patent should 
either
    make money or not within just a few years -- so how about a shorter 
term?
    That won't hurt inventors much and it reduces hair for everyone else."
    It's fundamentally an argument to weaken patent protection, but 
"just a little.
    Won't hurt much."

    Meanwhile, it's pretty much accepted (and proved) that the future 
success of
    developed economies, for decades to come, almost certainly hinges on 
strong
    IP protection.   The Bezos family of proposals is just a non-starter.


And that adds up to why my limited patents suggestion is so clever.
But for the tweak to scope (a tweak the courts might well arrive at
on their own given just a tiny amount of discretion over punitive
damages) my proposal *strengthens* the patent system by creating
more options and more incentives -- all while carving out a space in which
software folks can play quite nicely.    Shorter terms, etc. are not
*imposed* by my proposal, they are made an option and there are
positive incentives for choosing them.


-t