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

[Russell McOrmond]

On Wed, 28 Jan 2004, Ben Reser wrote:

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

  Just to clarify, I am not disagreeing with your interpretation of the
law and it is how I interpret the law as well.

  What I was trying to say is exactly what you do not want to comment on
which is that when talking about *software* creations and speed of
*software* innovation that talking about 14-20 years vs 50-120 years
(depending on country, when the creator died, etc) becomes a *practical*
argument of infinity vs infinity-plus-one.


  Me authoring FLOSS software which I am not allowed to distribute until
the end of the term of a patent I was unaware of when I created the
software (and I have no way to innovate around) has the *effect* of not
allowing me to exercise rights I would normally have in copyright such as
the right to distribute my own software.  It is true that I still hold
copyright and will be able to exercise those rights at the end of the
term of the patent, but with the speed of innovation in software this
really doesn't offer me much.

  Having multiple rights to exclude being in parallel means that you can
only distribute the work if you have somehow cleared all the exclusions.

  The suggestion that you can simply pay some royalty (assuming RAND of
course - I shouldn't need a lawyer to author software..) ignores a lot of
situations and business models that do not rely on monopoly-rent-seeking,
or otherwise have no way to collect this rent.  With FLOSS it doesn't
matter if the royalty is a million dollars per copy or a millionth of a
cent per copy, you do not have the right/ability to count copies under
FLOSS license agreements so you cannot successfully negotiate a
rent-seeking license agreement.

  The only way the copyright holder is able to distribute their software
as FLOSS is if the patent holder offers a worldwide, irrevocable,
royalty-free, field-of-use-unrestricted patent license.

  If the motivation for applying for the patent was to collect
monopoly-rents then why would they offer that RF license? If the
motivation for applying for the patent was to exclude competitors and
simply have a monopoly, then why would they offer that RF license?  If the
motivation for the patent was to ensure that only a small number of large
companies could exist and "compete" in a given market, then why would they
offer that RF license?

  Why should my right to receive the moral and material benefits from my
own software under copyright be dependent on the benevolence of a patent
holder who I received nothing from?  If I actually read their patent and
learned something then maybe there can claim to be an exchange, but I see
little evidence that people in the software industry learn from patents.  
In fact most software creators I know avoid looking at patents for fear of
being tainted by them.

> 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.

  Did you read all the links and commentary?  I did, and I disagree that
he was demonstrating thinking outside of the IBM box.  I understand why
unlimited patentability is good for very large companies like IBM and
can't argue against.  I do not believe that what is good for IBM is good
for the software sector of the economy as a whole.  I did not see
explanations of how unlimited patentability would be good for SMBs or
other sectors (such as the volunteer sector, private citizens innovating
in their home, etc) for which information process patents are only a
liability and a chill on their creativity.

> 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 don't believe he explained his position.  When asking direct questions
they were avoided.  I put a list of many of my questions in a single
message just in case they were missed and did not receive replies.

  My hope was to bring the conversation to the point where the reasons for
each side were clear, possibly even to the point some "trusted third
party" could tabulate the pros-and-cons of information process patents.  
This would allow people to look at the core areas of disagreement and
decide for themselves where their priorities were and what the balance of
public policy goals should be.

  I am being honest when I say I am baffled by the views of those who
support information process patents.  I am not trying to be insulting when
I try to get answers, but the other side suggesting that I am somehow
'stupid' for not understanding their logic, or that I am being dishonest,
or that I am a communist or some other 'ist, doesn't help the conversation
at all.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/

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