Lemley's suggestion might - might - have some beneficial effect but he's hardly made a convincing case that it will solve ?the software patent problem?.
Lawyer/law professor Mark Lemley has argued for years that, even as there are very clear problems with software patents, the answer is not to merely exclude software from being patentable. I tend to agree. I think it's pretty clear that the problems with the patent system go way, way beyond just software, and as such, excluding software from being patentable would actually leave many serious problems with the patent system in place -- with little interest left in fixing them.
I'm only surprised you didn't make the point more forcefully, Mike. As Stephan Kinsella has pointed out, a patent can be viewed as a (coercive, potential) transfer of partial ownership of the tangible property of others to the patentee. That, along with the fact that a patent is a ?no independent invention defence? right, already makes something of a mockery of ?natural rights? arguments in their favour. Add to that the high rate of independent (re-)invention (+ inadvertent infringement) and the conspicuous lack of evidence for a substantial overall positive economic/welfare effect, and I think it certainly is reasonable to view the granting and enforcement of software patents as (legalised) theft - and be very angry about it.
PDC have done exactly what they would be expected to do and - sadly - have every right to do. This is not abuse of the patent system, it's abuse by the patent system.
"I have never seen (and am certain I will never see) a patent so generic and broad in scope that it will stifle innovation in any specific area of technology."
Dear Santa,
I have been a good boy this year and I like books. But please NO books about patents or industrial history - especially not about steam engines or radio or powered flight.
Ta,
MLS
;-)
"I most certainly did not see innovation in new transistor structures and methods for making such structures, as well as in electronic systems employing transistors, grind to a halt."
That's a variation on the Campbell-Kelly/Merges/Mann straw man argument (about patent thickets rather than individual patents not having *completely* stifled software innovation).
Doc: How are you feeling plh?
plh: Never better thanks, Doc.
Doc: Hmm... Okay - I'm going to prescribe you this powerful experimental drug. It's thought that it may be beneficial for people with serious heart conditions.
plh: But Doc - there's nothing wrong with my heart!
Doc: Well maybe there is and maybe there isn't - but you could develop a problem at any time. It's best to be on the safe side.
plh: Errr right... You said it's a powerful drug. What about side effects?
Doc: Well apparently it has caused liver damage, aneurisms, respiratory paralysis and a few other problems in some older patients, but you're still young and fit - you should be okay for now.
plh: Okay, thanks Doc.
IBM before Phelps
Second on the list? IBM:
Cooley takes pains to praise the Gentleman-Sande paper, as well as an earlier paper by Sande (who was a student of Tukey's) that was never published. In fact, Cooley says, the Cooley-Tukey algorithm could well have been known as the Sande-Tukey algorithm were it not for the "accident" that led to the publication of the now-famous 1965 paper. As he recounts it, the paper he co-authored with Tukey came to be written mainly because a mathematically inclined patent attorney happened to attend the seminar in which Cooley described the algorithm. The lawyer, Frank Thomas, "saw that it was a patentable idea," Cooley explains, "and the policy of IBM and their lawyers was to be sure that nobody bottled up software and algorithms by getting patents on them." A decision was quickly reached to put the fast Fourier transform in the public domain, and that meant, in part, publishing a paper.
And it's partly because of 'patent-worthy' inventions such as that one; the RSA algorithm; the myriad compression algorithms, my own superfast D&D multi-dice probability algorithm ;-) etc. that I think your and Lemley's analysis and consequent position is misguided. If economics wishes to be considered (even) more respectable a science it could do worse than to start thinking about its patent system 'medicine' as ethical and evidentially informed medical scientists do about their interventions.