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October 9, 2008

Has Microsoft Really Patented Page Up and Page Down?

A ZDNet UK article claims that Microsoft has obtained a U.S. patent on the use of "page up" and "page down" keystrokes.  The article points to the fact that computer keyboards have had "page up" and "page down" keys for over two decades to imply that the patent was wrongly granted to Microsoft.

Even a cursory glance at the claims of the patent itself, however, reveals that those claims do not appear to cover the mere use of "page up" and "page down" keys, but rather some particular technique for using those keys to scroll through content.  (The claims are a numbered list beginning right after the text which reads, "What is claimed is:").  My point is not that this particular technique is entitled to a patent; maybe it is, maybe it isn't.  Rather, my point is that press coverage of software patents often implies that individual software patents grant their owners much more sweeping rights than they actually grant.  Such coverage isn't a helpful way to promote an informed public debate over the merits and demerits of software patents generally.

Posted by Robert at 8:29 PM | Comments (0)
category: Intellectual Property Law

September 28, 2008

World Day Against Software Patents

"A global coalition of more than 80 software companies, associations, and developers has declared the 24th of September to be the 'World Day Against Software Patents.'"  What members of the coalition don't seem to recognize is that software patents can't be prohibited per se, without as a side-effect also prohibiting a wide range of non-software patents that most people would agree should be allowed.

One way to understand this is to recognize that, in the real world, software is always implemented in hardware, such as by changing the states of switches in a computer's memory.  This makes it impossible to draw the distinction between patentable hardware and non-patentable software based on a distinction between the physical and the non-physical.  Attempts to render devices which "merely process information" as non-patentable would rule out devices such as mechanical calculators which have long been considered to be patentable.

This is not to say that all software should be patentable, or that patent law does not need to adapt to software in any way, only that a per se ban on software patents has no principled basis and that efforts to enact such a ban only serve to deflect attention from more nuanced and productive solutions.

Posted by Robert at 9:40 PM | Comments (0)
category: Intellectual Property Law

August 27, 2008

U.S. Patent Office to Expand and Extend "Peer to Patent"

The U.S. Patent and Trademark Office (USPTO) plans to extend the duration and expand the scope of the "Peer to Patent" pilot program, which provides a kind of peer review for pending patent applications. So far, 31 patent applications have been examined under the relatively new program, which has been extended by another twelve months and will now include business method patent applications in addition to computer-related patent applications.

Posted by Robert at 6:00 AM | Comments (0)
category: Intellectual Property Law

October 16, 2005

Symposium on the Future of Intellectual Property Rights in Software

I will be speaking later this week at a Symposium on the Future of Intellectual Property Rights in software at the Centrum voor Wiskunde en Informatica (CWI), the national research institute for Mathematics and Computer Science in the Netherlands.

The goal of the Symposium is to explore ways to fix intellectual property law, particularly patent law, as it applies to software. My talk is entitled "Reinventing intellectual property protection for software" and will provide a vision for the future of intellectual property protection for software.

I plan to blog from Amsterdam (if technology cooperates) to provide more details on the symposium and related topics.

Posted by Robert at 11:46 AM | Comments (1)
category: Intellectual Property Law

August 10, 2005

Digitizing know-how

IPcentral ponders the difficult question of who should own the technical know-how that is inside the heads of workers at high-tech companies. The posting was motivated by a recent court ruling that temporarily bars a former Microsoft employee from performing search-related work for his new employer, Google, because doing so would violate his non-compete agreement with Microsoft.

Trade secret law and non-compete agreements have long been used to control the movement of know-how and other information stored in the heads of human scientists, engineers, and programmers. But what happens when we "bottle" such know-how, or its equivalent, in the form of software that can design machines and write software? You might think that a company that develops an improved genetic algorithm that assists it in designing new machines should maintain that algorithm as a closely-guarded trade secret. After all, isn't the algorithm the functional equivalent of an engineer's know-how within the framework of the company's business model?

But I don't think the answer is entirely obvious. Perhaps the company should seek a patent on the algorithm, thereby obtaining a period of time in which it can block competitors from using the same algorithm even if they develop it themselves independently. Or maybe they should use some combination of intellectual property protection and licensing mechanisms to secure the maximum value to the company.

The point is that transferring know-how from a human mind to software raises some tricky legal and business considerations that will need to be addressed as the automation of invention continues.

Posted by Robert at 10:07 AM | Comments (0)
category: Artificial Invention | Design & Engineering | Intellectual Property Law | Technology Industry

July 22, 2005

Artificial inventions in simulated worlds

ACD links to an article in New Scientist describing an upcoming simulation of human behavior in an artificial world. One of the goals is to see whether culture will emerge in the simulation.

And what if the simulated humans discover fire, invent the wheel, or invent something completely new? Who would own the patent rights?

I suppose the next step would be for the simulated humans to write a (simulated) simulation of (simulated) humans, and so on, and so on . . .

Posted by Robert at 8:28 AM | Comments (0)
category: Artificial Invention | Intellectual Property Law

July 15, 2005

Does open source development produce innovations?

Anything Under the Sun Made by Man has an interesting posting questioning whether open source software development produces innovations. The author, a patent agent, relates that a software developer client of his "was of the feeling that nothing innovative has come from Open Source Software, nor will it ever. He cited several examples, including Linux, where a viable and useful piece of commercial software had been rewritten by OSS developers and released for free."

It is true that most of the effort in open source development to date has been directed to reproducing the functionality of existing software, such as operating systems, compilers, web servers, and graphical user interfaces. But although such projects may not produce innovations per se, they have other benefits. The original motivation for developing GNU/Linux was not to produce a new operating system, but to produce one that could be used and modified by its users without engaging in copyright infringement. Proponents of open source also claim that open source development produces software with fewer bugs and security holes than software produced using closed development models.

Also worth noting is that most open source projects produce platforms, protocols, and interfaces, rather than applications. These kinds of end products are valuable because they facilitate standardization and the development of specific applications and data formats consistent with the adopted standards. From a commercial perspective, it can be beneficial for such standards to be "open" -- not owned by any private entity -- because they increase the pie for everyone who is in the business of providing products and services consistent with the standards.

There is a connection between all of this and automated inventing. Should John Holland have attempted to patent the basic features of the genetic algorithm? In one sense, genetic algorithms are a platform for inventing and for problem-solving more generally. The arguments above would therefore imply that keeping genetic algorithms generally "open," as Holland did, was the right strategy for maximizing innovation. On the other hand, many patents have issued on specific applications of genetic algorithms. Such applications may have been kept as trade secrets, thereby depriving the public of knowledge about them, if patent protection had not been available.

This is all to say that developing legal rules to encourage optimal innovation is tricky business.

Posted by Robert at 8:20 AM | Comments (0)
category: Intellectual Property Law | Technology Industry

July 12, 2005

A call for legal polymorphism

"Polymorphism" is a term that is familiar to computer scientists but not to most lawyers. According to its Wikipedia definition, "polymorphism is the idea of allowing the same code to be used with different classes of data." One of the benefits of polymorphism is that it allows code to be written abstractly once, and to be applied to new and different classes of data without rewriting the code. In other words, polymorphic code is flexible enough to adapt to changing circumstances.

Lawyers are familiar with the same concept, although not under the same name. It is often said, for example, that the U.S. Constitution is a "living document" that was written abstractly in an attempt to make it flexible enough to deal with evolving circumstances without the need to rewrite the Constitution itself. Legislators, judges, and lawyers strive (or at least should strive) to write legal documents with the same forward-looking generality. In his book Code, Professor Lawrence Lessig used the term "translation" to refer to "finding a current reading of the original Constitution that preserves its original meaning in the present context." Those who know more about legal theory than I do could certainly give examples of other terms that capture the same concept.

One of the areas in which it is most difficult to achieve legal polymorphism is intellectual property law, because of the need for the law to adapt to rapidly changing, and sometimes revolutionary, technology. For example, the U.S. patent statute (written in 1952) defines the subject matter of patent law as "any new and useful process, machine, manufacture, or composition of matter." Although the drafters of the statute intended for this definition to be extremely general and hence flexible, they did not anticipate that computer programs would not fit easily into any of these four categories and hence cause (seemingly endless) controversy.

Fashioning intellectual property law to strike the right balance between clarity and predictability on one hand and flexibility on the other in light of changing technology is the challenge of legal polymorphism. Computer professionals and legal professionals have much to learn from each other about this enterprise and could promote legal polymorphism better in cooperation than either could hope to do separately.

Posted by Robert at 11:27 AM | Comments (0)
category: Intellectual Property Law

June 27, 2005

First File Sharing, Then People Sharing

BBC News reports that "[c]omputer scientists in the US are developing a system which would allow people to "teleport" a solid 3D recreation of themselves over the internet."

"Teleport" is in quotes because the technology, even if it existed, wouldn't really allow you to teleport yourself, but instead would create the illusion of doing so. To "teleport" yourself to your friend's house, you would need a camera connected to the Internet, and your friend would need a special machine with a stash of special synthetic atoms. The camera would take a picture of you and transmit the picture to your friend's machine, which would assemble the synthetic atoms into your shape. Capturing and transmitting images over time would produce a moving replica of you at your friend's house.

It seems that the same technology could be used to perform remote manufacturing. The manufacturer of a machine could transmit a 3D design for a machine anywhere in the world, and have the machine manufactured on location, thereby saving the cost of transportation. Unlike in the case of you and your friend, there wouldn't even need to be a physical "original" from which to make copies, just a CAD file generated using software. And any number of copies could be made, assuming a sufficient supply of raw materials.

This would bring the basic feature that has been causing so many problems for the "copyright industry" -- namely worldwide, instant, perfect, and (essentially) costless copying of audio and video -- to the manufacture of physical machines. Although automated manufacturing based on CAD-generated designs is old news in certain fields, it is unclear what its implications would be if it were to become ubiquitous.

Posted by Robert at 10:42 PM | Comments (0)
category: Design & Engineering | Intellectual Property Law