--Professor Donald Knuth, world renowned algorithms researcher
THERE has been somewhat of a stir and a reaction to this paper in favour of software patents [PDF]
. It has, as expected, been promoted by pro-software patents sites (and suffice to say, that practically means patent lawyers' media). There is pushback from people who actually deal with software, including software developers.
"Kappos apparently knows better than the courts what's good for the country."Calls to counter the author, who despite courts' rulings still wants to guard software patents, could be found online, including in IP Watch. Hugo Roy (FSFE) reacts with: "Arguing that the US software market is thriving *because* software is patentable there."
This makes no sense at all, but then again, consider who the author is. It's the former head of the USPTO, who repeatedly pushed for software patents, defended them, arguably expanded their scope, and collectively belittled their critics, just like his former employer (IBM). He is not a scientist but a lawyer or "an attorney" (putting aside a bachelor's degree from over three decades ago). He is current Partner at Cravath, Swaine and Moore, i.e. a law firm. David Kappos is a proponent of software patents, which are falling, failing, burning and crashing after the SCOTUS ruling on Alice. Kappos apparently knows better than the courts what's good for the country. Here is what IP Watch wrote last week:
In a clarion call to policymakers, former United States Patent and Trademark Director David Kappos said recently that this year’s unprovoked drop in patent filings in the United States is unprecedented and signals a shift toward more secrecy by inventors trying to protect their ideas. Meanwhile, the US trend toward antitrust actions at home is having deleterious effects for US businesses overseas, he said.
"Recall the time when IBM's patent chief/strategist (Marshall Phelps) defected to Microsoft and established the company's patent war against GNU/Linux and Free software, which IBM pretends to be ever so supportive of..."Going back to the argument of Kappos (formerly IBM) in favour of software patents, he would have us believe that software patents -- not military might and international lobbying power for example -- give the US its advantage. Watch Japan enforcing a patent monopoly against China, as reported by IAM the other day. One thing that we noted the other day about China is that it allows people to patent software. It probably grants more patents on software than the US does. As Patent Buddy put it the other day: "It is now easier to obtain a software patent in China than in the United States."
And yet, China does not dominate the field software, does it? Yes? No? Far from it! And Japan can still bully China using patents. There is basically nothing to be gained from such a strategy, unless patents are only to be treated as 'trophies' (assuming the perception that they're analogous to innovation can be perpetuated for much longer).
Recall India's policy on algorithm-related monopolies. India is making a terrible, suicidal move right now by deciding to allow software patents (this can still be stopped. Even without software patents Indian software developers have been doing pretty well, so why the sudden change? It's probably designed to stop them (the 'threat' of commoditisation to multinationals). As one site of Indian patent lawyers put it a couple of weeks ago: "Last week was a busy week at our patent office!! The Controller General issued clarifications under the Designs Act / Rules, and these examination guidelines under the Patent Act / Rules. I will not do an analysis of the guidelines but simply extract out some relevant parts for our readers. For more our readers can refer to our previous posts on Section 3(k) here, here, here, here, and here, and others. These guidelines are extremely detailed and would definitely be helpful to practitioners, and patentees."
Well, they are truly unhelpful to India itself, not just to its developers but also to local software companies. These patents would help multinational companies like Microsoft and IBM, not Indian companies, which makes one wonder who the Indian patent office actually works for. Software patents would help the likes of Microsoft and IBM crush low-cost competitors from India.
The US patent system, currently the 'leader' in software patents (and their birthplace), is an utter mess. "United 4 Patent Reform" demonstrates the extent of litigation by patent trolls and non-practising parasites. It says that "East Texas accounts for 44% of all patent case filings in 2015." One even shows the following chart:
“ARM sent patent threat letters trying to remove nnARM from the net”
--President of the FFII"A kangaroo court is often held to give the appearance of a fair and just trial, even though the verdict has in reality already been decided before the trial has begun."
In the above case we have Kappos, who used to head the USPTO, trying to overrule the rulings of many US courts, including (initially) the US Supreme Court. Who do these people think they are? Just like software patents themselves, Kappos makes a mockery of the US courts system and the US as whole.
Last but not least, let's recall what IBM really is and where it stands on this subject. In reference to an ARM-IBM surveillance alliance (centred around 'IoT' hype), IAM wrote: "Absurdly, according to definitions used by many proponents of US patent reform, ARM should be regarded as a "troll". "
Well, ask no-one other than the President of the FFII (prominent opponent of software patents) what ARM has done to him. "ARM sent patent threat letters trying to remove nnARM from the net," he wrote. ARM is not quite what it seems on the surface, It's actually a British company, not a US company, but misuse of patents for (anti-)competitive purposes is something that Intel does too (it does even worse things).
Attributing the 'success' of US software companies to software patents is simply ignoring the facts and disregarding all software companies other than very few giants (except when they themselves were still small). ⬆
"The Company believes that existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments." —Oracle Corporation, IBiblio: Oracle Corporation's position paper on software patents (when Oracle was still small)