PCT (Patents, Copyright, Trademark) policy and Open Source

[Ben Reser]

On Mon, Jan 26, 2004 at 10:06:10AM -0500, Russell McOrmond wrote:
>   I believe that with the speed of software innovation that comparing 20
> years to 50 years (or 75-95 in the USA - I forget how far the USA has
> gone) for exclusive rights in software is like having a philosophical
> debate about whether infinity or infinity-minus-one is larger.

Patents get 14-20 years depending upon the type of patent:

http://www.uspto.gov/web/offices/com/iip/data.htm#PatentProtectionLength

Copyright depends on the circumstances of the creation.

Works for hire get 95 years from publication or 120 years from creation,
whichever is shortest.  

An individual or more than one author who did not create a work for hire
receive a term of life + 70 years.  

So at an age of 26 if I create a work not for hire and live to be 100,
the copyright term could be 144 years.

http://www.copyright.gov/circs/circ1.html#hlc

So assuming the longest possible fixed terms (120 years for copyright
and 20 years for patents) a copyright term can be 6 times longer than a
patent.  If it's not a work for hire as most open source probably isn't,
it can be even longer.

I don't see how you can claim this is an infinity-minus-one vs infinity
argument.

Plus you entirely ignored the main point of my response.  To my
knowledge nowhere in the patent law does it strip a copyright holder of
his copyright.  Patents and copyrights are not mutually exclusive
rights.  They exist in parallel.  

You maintain your copyright on an implementation of a patented
algorithm.  You simply may owe royalties to the patent holder for the
term of their patent.

If the length of a patent hurts software innovation was not the point.
Nor did I make any commentary on that.  I simply pointed out an
inaccuracy in your statement.  

>   While you may not agree with what I am saying, I do not agree that I am
> distorting things.

You implied that a patent was mutually exclusive to a copyright.  If
that's not a distortion then I'm not sure what your definition of the
word is.  

>   I am being aggressive as most of the responses have been from Alexander
> Terekhov at IBM who is strongly opposed to what I had to say.  It is hard
> for me to not get an aggressive tone considering the way he replied to my
> messages.  Calling me a Communist was classic, and I doubt many other
> people here would have remained any calmer having read such things said of
> themself.

I'd note I made specific note that some of the responses you got weren't
good either.  

>   This is an interesting interpretation of things as I do not see very
> many people disagreeing with me, or even participating in this thread.  
> By number of messages you may be correct, but most of the responses have
> been from Alexander.
> 
>   Other people posting?

Okay maybe I got the number of people posting confused.  But I do think
Alexander posted a number of informative links.  That included rational
explantions for his position.

You responded back and forth with him eventually posting a series of
questions of him.  At the end of which you said:

>>>
When answering these questions please don't just think of what IBM or
its employees would privately benefit from, but from what the larger
software sector(s) and economy outside of IBM would benefit from.
<<<

Thereby implying that he hadn't done that already.  I'd argue that his
previous informative links and commentary showed in my mind that he was
trying to do that.  Certainly if I were him I would have been offended
that because you didn't share my opinion that you decided to call my
opinion self centered after the effort he went into explaining his
position.

I can't defend him calling you a communist.  But I don't think you were
exactly being fair in your treatment of him either.

>   I have reached out to many people at IBM over the years, and each offer
> the same general perspective which is that in their mind that software
> patents are good for software creators.  While I agree that software
> patents are good for IBM, I (obviously strongly ;-) disagree that they are
> good for software creators generally.
> 
>   I opened the discussion here in the hopes that the OSI (which I am not a
> member of, just a supporter) could form a position on this important issue
> and publish that position.
> 
>   Alexander is going to be quite accessible as a participant in this forum
> and works for IBM.  He has expressed what I believe to be an honest
> personal belief (and not just him towing the corporate line) that having
> software patentable is good for software creators.  I do not understand
> his beliefs, but he has been quite clear.

Didn't say he hadn't.

>   There is little that can be said that the entire Open Source community
> agrees about, so that isn't reason enough to not discuss something ;-) Not
> talking about a quite critical issue when there is a lack of understanding
> isn't going to solve things either.
> 
>   Alexander has expressed that he believes that software patents are good
> for software creators, and specifically good for Open Source.  While I may
> not be the best person on the other side of the debate as I cannot
> understand Alexander's viewpoint, another Open Source advocate that has
> spent time on the software patent file should jump in.
> 
>   There are various Open Source conferences that happen almost every
> month.  I believe it is critical for the Open Source movement to have some
> open debates on software patents and get this issue resolved.
> 
>   We could have an "Alexander Terekhov vs Bruce Perens" debate, or some
> other pairing of people who feel they are part of this community but are
> on polar-opposites of the belief of whether software patents are good for
> the community.

Such a debate is good only to the degree that it is constructive.  At
the point I wrote my email I didn't feel that the conversation was being
constructive.  It was quickly turning into you and Alexander pushing
each others buttons.

That's usually a good sign that you should stop.

I'll repeat.  I've gone to great effort not to explore my own views in
this thread regarding if patents are good or bad, be they software
patents, design patents, or any other patent.  

My only effort was to correct statements you made that don't seem to
match up with the law as I understand it and suggest that the
conversation wasn't constructive.

So replying to me with a missive about how you feel about patents and
trying to clarify how you feel about them serves no purpose.  I'm not
arguing with you if you're right or wrong in your overall opinion.

-- 
Ben Reser <ben at reser.org>
http://ben.reser.org

"Conscience is the inner voice which warns us somebody may be looking."
- H.L. Mencken
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