At a recent conference of the Association for Competitive Technology, Microsoft's GC, Brad Smith advocated reform of the software patent approval system. Sunday's New York Times, Business Section, page BU3 had an article entitled "Why Bill Gates Wants 3,000 New Patents" which also quoted Mr. Smith, but noted Microsoft had increased its patent applications. The article quoted Mr. Smith to the effect that "We thought we could rely on copyright" in the past. The story then opined:
"If Congress passed legislation that strengthened copyright protection to include design elements as well as software's source code, formalizing the way the courts interpreted the law in the 1970s, we could bring an end to software patents and this short, unhappy blip in our patent system's time line."
I don't know what is referred to by "design elements" or by court interpretations in the 1970s. Although the Copyright Office did register a few claims before the 1976 Act, design elements weren't an issue since there were no decisions under those registrations, registrations which, by the way, were and could only be for published programs. (And the programs were quite primitive). Even after the 1980 CONTU amendments, protection for sequence, structure, and organization, that is, non-literal elements, didn't really take off big time until Whelan v. Jaslow Dental Laboratories, 797 F.2d 1222 (3d Cir. 1986). Most of the criticism of Whelan wasn't over protecting "SSO" but instead was over Whelan's expansive definition of idea and its false analogy to regular literary works. In other words, the complaint was not that non-literal elements shouldn't ever be protected, but with how the court determined the protectible elements and therefore their likelihood of being infringed. To call Whelan liberal is like calling Rush Limbaugh right wing.
The Whelan era came to an end six years later, with Computer Associates Int'l Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992). Computer Associates was, from my understanding, a deliberate effort by the Second Circuit not only to cut back on Whelan but to also signal strong disapproval of Congress's choice to protect software under copyright at all, and to cripple the broad protection that seemed to be the wave of the future.
Computer Associates fell into one of the same traps as Whelan though (the analogy to literary works) and its abstraction-filtration-comparison approach (based on Mel Nimmer's false and flawed abstractions "test" and David's proposed expansion of it for software) is an abomination that has ravaged copyright like the Black Plague. But if the purpose of the abomination was to indirectly but deliberately eliminate expansive protection for what Mr. Gates was referring to as design elements, Computer Associates accomplished that purpose, and thus it may be the basis for his remark.
But even the Third Circuit has turned its back on Whelan, in Dun & Bradstreet Software Services, Inc. v. Grace Consulting, Inc., 307 F.3d 197 (3d Cir. 2002), while the Second Circuit mitigated a few of the untoward consequences of Computer Associates by taking a more holistic approach in Softel, Inc. v. Dragon Medical & Scientific Communications, Inc., 118 F.3d 955 (2d Cir. 1997). And then there is Lotus Development Corp. v. Borland Int'l, Inc., 49 F.3d 807 (1st Cir. 1995), aff'd by an equally divided Court, 516 U.S. 233 (1996), reminding us that the Supreme Court is indeed in the habit of dodging, not deciding, tough copyright cases, since it dropped Lotus one week after oral argument.
Due to international obligations, the U.S. has no choice but to protect software under copyright, but the scope of that protection, including "design elements" is up to national law. And that leads us back to Microsoft's simulataneous embrace of and criticism of patent law. I would be interested in learning exactly what Microsoft's views are on the current state of software copyright and whether it thinks there are current deficiencies. I'll send this to a friend in Microsoft's legal department and perhaps he'll tell us.
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6 comments:
Personally, I think it would be a good idea to abolish software patents altogether, but only for the time being.
Patents are supposed to be an incentive to cause those patentable inventions to be made, disclosed, and brought to market which otherwise would not have been.
Presently, there is so much work going on in that field that I do not see patents providing any incentive at all. The rewards to developers are great anyway. In fact, the costs of avoiding infringement are such that software patents are probably harming the software industry, rather than helping it.
Someday in the future, the field may slow down and finally deserve patents for acceptable pragmatic reasons, and not mere ideological nonsense (i.e. patents for everything under the sun made by man). But we're not at this point yet. Possibly we may never be.
Abolishing software patents would likely only have beneficial, if any, effects on invention and marketing. Disclosure -- to the extent that it's needed, since software methods of operation are often not that secret -- could be handled very well with the copyright system, by strengthening formalities and requiring full disclosure of software source, binaries, and sufficient comments to aid people who seek to learn the uncopyrighted ideas and methods within, and to aid people who seek to make use of the protected work when the copyright expires.
That this might impair trade secrets in the software field is of no concern, I think. Formal protection, such as copyrights or trademarks should be wholly incompatable with trade secrets.
Despite their disadvanages, software patents have one fine feature: they expire after a reasonable time.
The term of copyright has become so long that we might be better off with patents for literary works which foreclose whole genres to new writers for twenty years. After the twenty years were up, the follow-on works and derivations would come thick and fast.
This reminds me of the guy who killed his parents and begged the court for mercy because he was an orphan. When you get hold of the guy at Microsoft, ask him how Apple v. Microsoft, 35 F.3d 1435 (1994), would have turned out under Gates' new copyright regime. The battle over copyright protection for software design elements -- we called it "look and feel" -- was recounted in "SoftWars -- The Legal Battles for Control of the Global Software Industry" by former IBM General Counsel Anthony Clapes. Bill Gates, back then, was storming the gates (heh) of copyright protection for design elements.
Timothy,
How can you hold out patents on methods in the realm of software as having reasonable limits? How far has the software world moved in 20 years? Where would we be now if there were patents on mouse cursors and the like?
At least copyrights, though practiacally perpetual, cover actual implementations. If I can show that I haven't copied your actual code, then I'm home free. With current software patents, I just have to have infringed on your patented "method" to be in trouble.
The whole of business and software methods patents should be thrown out by Congress as soon as possible. We'd all be a whole lot better off without them.
Patents are closer to the mark than copyrights for software.
Software is not valuable because of the particular way that the Code is written. The implementation has about as much commercial value of the Oxford University library card catalog numbering system, which categorizes books by size and weight. Software is valueable primarily because of the ideas embedded in it.
The use of the derivative works right in copyright is a backdoor way to do something that coypright wasn't designed to do.
Moreover, the virtues of the patent process are that it puts ideas into the public domain once the relatively short patent term expires and that it subjects attempts to protect software to patent tests like obviousness and state of the art.
There is a class of patents that should be abolished: The business process patent. But, that is another story.
We need to be cognizant of Microsoft's purpose in supporting software patents and/or design copyrights -- in order to maintain its monopolies in operating system software and office applications. If Microsoft can legally prevent competitors from offering software that reads files created by users with its products, then it has a stronger lock on those customer's business.
I think software copyright is largely in the right place. It allows expressions to be protected, but not ideas.
The biggest problem with software patents is that they are granted for obvious applications. Let's claim something that people have been doing for ages but now can do on a computer! That's not something which needs protecting.
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