Subject: Re: [Freesw]
Date: Tue, 8 May 2001 21:50:39 +0900

On Fri, May 11, 2001 at 11:23:17AM +0200, Bernard Lang wrote:
> Considering that the issue of software patenting is a major one,
> my questionning of the Foresight Institute initiative.
>   This list usually has opinions.
> and some of the supporters of this initiative do read this list...


I am a comparative lawyer with an interest in Internet affairs.  I do not have
a formal background in IP law, and no one (as far as I am aware) has yet
referred to me as a law-God.  I am not a "supporter of the initiative",
mostly because I am not prominent enough for anyone to take the trouble to ask
me to be one. But with those qualifications, I'm happy to offer an opinion.

The point of the scheme is to preserve a little something for the
information commons; it does not pretend to be a magic bullet that will win
the war on software patents.  If one wishes to see the coverage of software
patents constrained, then so long as this initiative does not show promise of
affirmatively worsening the problem, I would think that one should be inclined
to support it.  That position is consistent with what Mark Lemley was quoted
as saying in the Salon article, and with Lessig's statement as well. I think
we're all in the same tub on this.

Creating yet another archive of material for patent examiners to plough
through is unlikely to hugely improve their hit rate in identifying prior art.
But it does prepare the ground for a strong rebuttal to a warning letter:
"Thank you for drawing attention to this important technology.  Please note
that the PTO recognizes filings in the archive as prior art.  This
technology, for the purposes for which we are using it, is listed in that
archive.  The references are attached.  Have a nice day."

That, it seems to me, is a much cheaper defense than crossing arms in
litigation, or buying off the party sending the warning notice.  Eliminating
bogus patents would be a happier solution.  But that one is not available.

If I read this right, is not trying to set up a private patent
registration system with this; they are not taking on the task of weeding
through the filings to identify those that it deems to be novel.  Instead,
they are relying of self-selection in the face of the $20 filing fee, plus
the threat that a patent will issue, to keep the archive slim. If you have
something that promises to make $20 in returns for you plus postage and
handling and a bit of margin, and you are worried about being hit with a
warning letter, you have an incentive to file.  Otherwise you'll stay away.
Prospective filings that can't clear this hurdle are not going to be the
subject of patent action anyway, so (the reasoning goes) nothing is lost.

The argument that software patents can be fought more effectively by driving
up search costs doesn't make sense to me.  Everyone is after utility.  Free
software developers what to create useful systems, and the proprietary folks
want to affix patents to useful designs.  If you drive up the cost of finding
useful stuff, you drive it up for everyone.  The community would not, I
think, readily accept that software patents should be impeded by impeding
software development itself.  As Chuck Yeager said of ejection seats in jet
aircraft, this is a way of "committing suicide to keep yourself from getting

That's my take on this, for what it's worth.

Frank Bennett             Home:
Graduate School of Law
Nagoya University