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Difference between revisions of "Drafting the next US amicus brief"

(Innovation without patents: Apple?: It might be useful to have an English translation of the German Network Competition Through Regulation report.)
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{{bilski}}'''Bilski 3''' is a brainstorming project to be ready for next time when the case against software patents has to be explained to a judge.  There will not be a third Bilski case, but the name lends some structure:
 
{{bilski}}'''Bilski 3''' is a brainstorming project to be ready for next time when the case against software patents has to be explained to a judge.  There will not be a third Bilski case, but the name lends some structure:
  
* In 2008, under [[Ben Klemens]], [[ESP]] submitted a brief for [[in re Bilski]]:<br />[http://endsoftpatents.org/local--files/news/esp-bilski-final.pdf The 2008 in re Bilski brief]
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* In 2008, under [[Ben Klemens]], [[ESP]] submitted an [http://endsoftpatents.org/local--files/news/esp-bilski-final.pdf amicus brief for in re Bilski]
* In 2009, under Ciarán O'Riordan, ESP further developed that brief and submitted it for [[Bilski v. Kappos]]:<br />[http://endsoftpatents.org/amicus-bilski-2009 The 2009 Bilski v. Kappos brief]
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* In 2009, under Ciarán O'Riordan, ESP further developed that text and submitted an [http://endsoftpatents.org/amicus-bilski-2009 amicus brief for Bilski v. Kappos]
 
* For the next time, whenever and wherever that is, how should we further develop that brief?
 
* For the next time, whenever and wherever that is, how should we further develop that brief?
  

Revision as of 06:10, 13 October 2009

Template:BilskiBilski 3 is a brainstorming project to be ready for next time when the case against software patents has to be explained to a judge. There will not be a third Bilski case, but the name lends some structure:

So this page is for taking arguments that we've already somewhat developed, and making a text that is sufficiently clear and concise to fit in an explanatory letter. For initial development of arguments, use the arguments page and its subpages.

Publishing information becomes dangerous

The basics of this argument still need to be developed: Publishing information is made dangerous.

Harms the emerging model: collaboration

Software development is in a transition phase as the model of companies developing whole software systems is being replaced by companies collaborating, by individuals collaborating as community projects to develop software and systems, and companies collaborating with community projects.

In the collaborative model, parties enter and leave the domain very quickly. This is incompatible with the time scales of the patent system - even more so than the previous software development models. Thus, software patent block not only a useful element of the domain, but also the evolution of increasing reliance on that element.

(I hope this is clear. The wording is a bit strained because I keep trying to avoid talking about the software market or industry - we should never exclude individual programmers from the dialogue.)

The countries pushing software patents are no longer the main holders

The USA, whose companies are the main holders of software patents around the world, holds most of the power and profits that can be obtained with software patents. This may explain why the USA pressures other countries to allow software patents too. However, as other countries expand their patenting of software, the USA will lose this position, so in discussions in the USA, it should be highlighted that this "benefit" of software patents is not going to last and thus the situation will only get worse.

For this we need figures about what percent of software patents, granted by the USPTO and by other patent offices, are given to companies from the USA companies.

This argument may be unnecessary outside the USA. But if necessary, it should be equally applicable in other countries.

Non-abolition "solutions" are failing

This point was left out of ESP's Bilski v. Kappos brief because it was difficult to explain this point convincingly while keeping it short enough for inclusion in the brief.

Disproportion in advice

When courts or patent offices permit external bodies to submit comments or arguments, there is a disproportionately high quantity of contribution from patent lawyers and large corporations. Maybe this could be documented and pointed out as a reason to give more consideration to the anti-software-patent arguments which are few but represent a very under-represented section of society.

Innovation without patents: Apple?

The 2009 brief used Microsoft Windows 95 and GNU/Linux as two examples of large software systems developed without patents.[1] To a certain degree, Apple could be added to that list. Without having looked into their patent habits, we can see that they spent many years developing the base of their system (kernel, libraries, system tools) only to throw it all away and use the equivalent components from FreeBSD. Some research would be needed to find evidence to support this, but it's likely that they patented their base system during development, so it's noteworthy that they discarded their patent-fueled software for a software that was fueled not by patents but by copyright alone.

English translation of Netzwettbewerb durch Regulierung

It might be useful to have an English translation of the German Network Competition Through Regulation report.

References