08.06.10
Bilski Interpretation From Patent Lawyers
“The Justice Department also renewed its request that the court fine Microsoft $1 million a day for contempt and, in an unusual move, asked the judge to give the government new authority to review any new operating systems or browsers made by Microsoft at least thirty days before release.”
–Barbarians Led by Bill Gates, a book composed
by the daughter of Microsoft’s PR mogul
Summary: How today’s patent lawyers have further subverted patent law and turned it into a monopoly enabler which does nothing but inhibit science
Eben Moglen is a unique lawyer in the sense that he views copyright and patent laws with a different contextual knowledge in mind. Moglen studied legal history when he was earning his doctoral degree and in this new interview with The Prior Art Professor Moglen explains how the Bilski decision relates to the history of patents. “The job of patent law was an eighteenth-century job—encouraging people to immigrate to the U.S., bringing skills with them,” he explains. Here is the whole answer:
Q: What’s your opinion of the Bilski decision?
The decision is one of those that clearly shows why it has come down on the last day of the term after being argued early. When you see a case like that come down, one of the things that occurs to you is that a majority has fallen apart. The justices agreed about less than they thought.
Everybody has to adjust to the fact that a question we believed was going to be decided didn’t get decided after all.
In the case of Bilski, the question was: “How does patent law work in the twenty-first century?”
The job of patent law was an eighteenth-century job—encouraging people to immigrate to the U.S., bringing skills with them. This was a big continent which the white people here thought of as “empty.” Patent law—the way the Continental Congress wanted to make it, the way the Constitutional Convention saw it—was a way of rewarding inventors.
In the nineteenth century, that eighteenth-century system worked well. America filled up with people who used technology to tame the natural environment.
Right now, we have a patent system that’s extensively used only by two industries: information technology and pharmaceuticals. Anybody else, the patent system doesn’t help them that much. Most of the world’s manufacturers now use trade secret law. [And] the two industries that use patent law heavily use it for reasons irrelevant to its formation.
In the information technology [IT] industry we live in now, where software [is often] made by people who want to share rather than own, patent law imposes very significant problems for innovators. That patent law doesn’t maximize innovation in software has been the observation of engineers and lawyers who work in the part of the world I work in, sometimes called the free and open source software community. But what it really is is part of science. Knowledge about the world is collected and organized for other people to learn from. Unlike almost all other forms of science, because writing it down in computer terms can also be writing down a program a computer could execute, basic scientific communications are made the subject of ownership by current patent law, unintentionally.
Unlike Moglen, many lawyers make a living out of agitating (suing) companies for so-called ‘inventions’ which these lawyers never had anything to do with. Some lawyers help create ammunition with which to agitate other companies. In that regard, these lawyers’ contribution to society is largely negative (we do not make sweeping statements about lawyers, just particular types of lawyers).
“Funny how those who promote software patents are rarely computer scientists, just monopolies and parasites.”One example of a vocal patents parasite is Gene Quinn with his Patent Watchtroll blog, which continues to lobby in favour of software patents, this time by giving a platform to yet another patent lawyer. Separately, in a legal site which entered Google News there is another patent lawyer doing this type of lobbying just yesterday (but for business method patents). By stating that the Bilski case endorses software and business method patents (which is does not, at least not directly) they hope to encourage more people to come to lawyers like themselves and pay extraordinary amounts of money to create an unjust monopoly. Funny how those who promote software patents are rarely computer scientists, just monopolies and parasites. Sometimes they (Microsoft for example) hire AstroTurfers to pretend to be small businesses in favour of software patents. █
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