From jeff.watson@patent.gov.uk Thu Nov 9 18:51:10 2000 MIME-Version: 1.0 Date: Mon, 06 Nov 2000 19:02:47 +0000 From: Jeff Watson To: eddy@chaos.org.uk Subject: Software/Method patents -Reply Content-Type: text/plain Content-Disposition: inline Dear Mr Welbourne Thank you for your comments Best regards Jeff Watson >>> Edward Welbourne 6/November/2000 04:44pm >>> > Should Patents be Granted for Computer Software or > Ways of Doing Business? I may as well begin by giving my main answer: No. > Q1. How does what you do involve using software? I write software. To do so, and for recreational purposes outside work, I use software. (Linux both at home and at work these days, I am glad to say.) I also write web pages about mathematics and care about their intelligibility to wide audiences. See http://www.chaos.org.uk/~eddy/ > Q2. Do you think software should be protectable by patents? No. Indeed, I would go so far as to say we should be reducing the extent to which inventors may hamper (not necessarily subsequent) inventors by the exercise of privileges granted by our governments: we should certainly not be expanding it. > Q3. Why do you say that? The purpose of patents (or, at least, the justification of them for which I have some sympathy) is to ensure that the public shall, in due course, have access to inventions; this is ensured by providing the inventor with an economic incentive. I would still write computer programs (and mathematics) without patents. I would still be able to make money out of my work (via, for example, consultancy) even if I were not granted a monopoly on use of my work. Among the obvious failings of patents (the price paid for encouraging disclosure) is the inevitable injustice that arises when two folk invent `the same thing at the same time'. Both have invested seriously in making the invention, yet patents ensure that only one of them can reap rewards from it. Further, if `someone would have invented that within the lifetime of the patent', such subsequent inventors are made to suffer in order to provide an economic incentive to the one who got the patent. Many patents are presently granted for products which, once the inventor has made any money out of them, have been fully disclosed by the expedient of putting a product in the hands of the public. In such a case, it is hard to see how providing monopolistic incentive to the inventor is a prerequisite of getting them to disclose their invention. Where an inventor goes to market with a shody or inept implementation of their invention, no-one else can offer the public a high quality implementation of the same unless by the inventor's consent and subject to whatever the inventor wishes to charge in licence fees: the public suffers by this. Powerful corporations can get to market first with a product, if they invent it, which will provide them with a respectable return on their investment (and would do so without the need for a monopoly - first to market is worth a lot). Smaller players typically need to obtain start-up capital to get their product to market: obtaining this has a long history of depending on a deal with a larger player ... who does the obvious and makes sure *they*, not the inventor, reap the bulk of the benefits of the monopoly. Those who don't need patents to make money are able to make vast amounts out of the patents of those for whom patents might seem necessary (but who might well do better if they published their idea, without patent, and offered their labour as the most skilled practitioner of the new craft). One of the major phenomena of the present rapid-growth phase of my industry (software) is `incremental innovation' - where one player mimics another and adds some features - which is very vulnerable to `strategic' use of patents; large parts of the industry are already tangled in a web of mutual cross-licensing (which acts as a barrier to entry for new players in the industry) which it would be hard to distinguish from a cartel (had their lawyers not made sure to do the deals in some way definitely distinguishable (to the law, if not to the rest of us) from a cartel). I believe a *reduction* in the scope of patents would make it easier for me to do my job (not having to spend half my time looking over my shoulder to check whether I'm infringing a patent when I use my latest ingenious idea) provide consumers with greater choice facilitate incremental innovation open up a wider range of business models by which inventors could earn a living (e.g. consultancy, without having to argue about whether they or their client ends up owning the patents) reduce barriers to entry in a wide range of markets - hence encouraging competition, free enterprise and innovation, while serving consumers better. perhaps that's enough on Q3. > Q4. Does what you do involve trade in services rather than products? Both. My employers (like several before them) have software they sell (using copyright law to protect their investment) and, at the same time, make money out of consultancy deals, usually (but not exclusively) with the purchasers of our software, founded on the fact that we know the relevant subject area well and computers even better. > Q5. Do you think ways of doing business should be > protectable by patents? No. > Q6. Why do you say that? What benefit does the general public obtain by providing for an inventor of a business method to be able to exclude other businesses from exercising the same method ? If the method is any good, the inventor is going to get on and do business that way: which will reveal the method to other businesses reliably enough that we don't need to create an economic incentive to publish it. In the mean time, the inventor should have made some money out of it. If the method is poor, but a patent is granted to someone with good lawyers, other businesses are going to suffer `nuisance' law suits for doing things similar enough to the bad method that its patent-holder can claim they infringe. Then everyone but the lawyers (at that the least scrupulous of them) loses. Much the same argument may, indeed, be aplied to many other patents under the present system (to exercise the idea at all, the inventor has to make it publicly known: so what purpose does the incentive serve ? Some patents, e.g. on fabrication technology of silicon chips, are not obliterated by this - the product doesn't reveal how it was manufactured); and most of the arguments above (Q3) can as readily be applied to business method patents. > Q7. If you have any experience of the US position on patenting > software or business methods, how would you assess it? Limited experience only. The worst part of their system is that judgement of `non-obvious and original' has been slapdash and failed to take account of significant prior art; patents have been granted which are both obvious and blatantly derivative; whole businesses have been set up to exploit this state of affairs, thereby exacerbating it. The impact on my employers' business has tended to involve living with the risk that we might be unable to sell our products to folk in the U.S.A. My present employers have had the clearest example of this: we had to licence RSA's libraries (for the cryptographic patent which expired this September) to be able to sell our product in the states. One final note: at present, such an enormous number of patents are being granted (especially in the U.S.A.) that it is utterly absurd to suggest that I can check whether a program I am writing (or any other kind of product I could develop) infringes some of them. Furthermore, in many cases, it is not possible to discover whether I infringe without actual litigation and a court ruling; and, even if I do not infringe, my ability to make a decent return in my investment in my program (or other product) is endangered by the prospect that my first-to-market lead will be obliterated by the period when I'm being prevented from trading by a court's injunctive relief for someone who *claims* I've infringed their patent. Where I cannot tell whether I am committing a crime, and where I am unable to prove a counter-suit for malicious prosecution when someone falsely claims I have committed a crime, the law causes exactly such trouble as it is meant to spare me. Patents create a climate of realistic fear for smaller players. They are not in any sense necessary for larger players to do well. Some form of scaling back of the scope of patents is needed. Yours sincerely, Edward Welbourne. -- Due to circumstances beyond your control, you are master of your fate and captain of your soul.