Soft? Where?

The Congress shall have power...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries… Article 1, Section 8(8) of the U.S. Constitution

I recently delivered a keynote address at a gathering of patent, copyright and entertainment lawyers in Miami. My premise was that our intellectual property laws favor incumbent biggies with vast pools of lawyers at their beck and call but do very little to “to promote the progress of science and the useful arts.” Indeed, culture is itself primarily a flow of derivative works, so attempts to lengthen the term of copyright and limit royalty-free transformative fair use applications really don’t add much more in the way of promoting much of anything except piracy – if the rules for fair use are so stupid that culture-creators cannot “derive” new growths of such materials within their lifetimes, then ignoring copyright takes on a moral imperative if true creativity is to blossom

I remember asking the body of gathered lawyers whether they believed that Amazon’s “one touch” purchase click should have been accorded a business method patent… as courts determined it should… and not one member of the audience raised his/her hand, despite my begging for a single supportive voice. Does anyone out there see this as so inventive that a patent monopoly is appropriate? We call that “low patent quality.” Where have we gone wrong? At least the Supreme Court, in the Myriad case, held that “discovering” natural genetic phenomena does not rise to the level of creating sufficient basis for a patent.

And if there is anywhere where it is almost impossible not to violate some almost-impossible-to-discover underlying patent, it would have to be in connection with the creation of new software. It’s too hard to find out here if you might be stepping on someone else’s notion of invention; the discovery process is well-nigh impossible. While the Obama administration has begun to clamp down people who buy seminal patents just to sue others – so-called patent trolls – the entire notion of software patents is… well… patently absurd!

“Most people cite problems with patent trolls or low patent quality. But a recent study by the Government Accountability Office makes it clear that the real problem is more specific: Patents on software don’t work… Of course, the GAO doesn’t quite come out and say that. The study, released [in late August], has the bland title ‘Assessing Factors That Affect Patent Infringement Litigation Could Help Improve Patent Quality.’  But the study is chock-full of evidence that most of the patent system’s problems are really problems with software patents… The number of software patents has soared in the past two decades. In 1991, software-related patents (using a broad definition adopted by the GAO) accounted for fewer than a quarter of all patents issued by the U.S. Patent and Trademark Office. In 2011, for the first time ever, software patents accounted for the majority of all patents issued…

“The rise in patent litigation is a more recent phenomenon. ‘The overall number of defendants in [patent] cases increased from 2007 to 2011 by about 129 percent over the 5-year period,’ the GAO reports. ‘Lawsuits involving software-related patents accounted for about 89 percent of the increase in defendants during this period.’” The Washington Post, August 29^th.

Enter the land of sheep and special effects to grapple with this complex issue. With Weta Digital designing software that you have seen in films like Lord of the Rings, Wolverine, X-Men and The Avengers, New Zealand is a hotbed of software design creativity. And maybe, just maybe, those Kiwis have just figured out the obvious solution: “New Zealand voted to ban software patents this [in the last week of August]. The European Union has beendebating whether to allow patents on software for more than a decade, with a strong grass-roots movement pushing to disallow them.” The Post.

There is a fine line between rewarding truly inventive and creative works and stifling those who would create or invent but for unworkable monopolies in basic and necessary underlying patents and copyrights. The United States is most certainly on the wrong side of that line, and Congress has pushed for decades to extend copyright into two lifetimes. Time to get real or watch piracy become the only rational response!

I’m Peter Dekom, and sometimes overprotecting the creative world actually has the opposite effect.