Today’s Topics
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Software IP
Patents
Public and private commons
Policy design
The Turing Machine Challenge
• The computer is the meta-machine and metamedium
• Software is a form of expression
– Should it be covered by copyright?
• Software is also a description
of mechanism
– Should it be covered by
patents?
The Case of Copyright
• Software developers wanted to make sure others
could not steal their work
• Many worried about copyright blocking progress
– Software is clearly additive as each system contains
numerous subsystems, etc.
– Where there are “an infinite” number of ways of
telling the buddy cop story there are few good ways of
performing some functions
• Copyright used to keep others from copying the
code
The Case of Copyright (2)
• Court interpretations have minimized negative
effects
• Copyright does not cover
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Performing the same function
Picking the most efficient way to perform a task
Meeting a market demand
Decompilation to create competing product
• In effect, copyright is used to keep others from
copying the code
– Cannot hack in and steal code
– Cannot take code you wrote for hire with you to
another job without prior agreement
General Public License: A Side Effect
• Software copyrights have enabled creation of
software commons
• Since copyright is automatic, creators of
software code can require particular behaviors
from those who reuse it
– Anyone can use the software without restriction
– The source code must be made publicly available
with the same license
• Variations on such a license exist
The Case of Copyright (3)
• Does not mean there were no issues:
• Apple sued Microsoft in 1988 for similarities
between MS Windows and Apple’s OS
• Xerox sued Apple for violation of its copyrights
• Steve Jobs said
– “Picasso had a saying - 'Good artists copy, great artists
steal.' And we have always been shameless about
stealing great ideas.”
• Legal system is effectively the game engine
monitoring competing parties
Patents
• Patents motivate inventors to invest effort and money
in economically valuable innovation
• Patents cover instantiations, not ideas
– Cannot patent the idea of catching mice with a machine
– Can patent a mechanically-enabled method of catching
mice
• Innovation must be novel
– Not obvious to a “person having ordinary skill in the art”
• They provide rights for derivative works
– Motivating negotiation
• US patents last 20 years
– After that the design can be used freely by all
Software Patents
• The boundary between ideas and methods
• F = ma is not patentable
• But what about:
If (know F) and (know a) then m = F/a;
Else if (know F) and (know m) then a = F/m;
Else if (know a) and (know m) then F = m * a;
• Current interpretation allows almost any
computational process to be patentable
– It still must be novel and non-obvious
Software Patents (2)
• Aside on software patent claims
– Must specify a method (not just a goal)
• Except …. means plus function claims
– Claim a “means for …” where the method is that
described in the specification and equivalents
– Slippery slope for determining method
• Importance of understanding of obviousness
– Person having ordinary skill in the art (PHOSITA)
Software Patents (3)
• Today there are tons of software patents
• Much of the basics of computing developed
prior to the patent-happy practices of today
• Limitations to copyright do not hold for
patents
Software Patents (4)
• Mobile computing is not so lucky
• Example
– Swipe to unlock (US patent
7,657,849)
• 31 pages to describe the invention
• Declared “obvious” by Dutch judge but not in the US
• Result is a consolidation of intellectual property
in mobile devices
– Vision of patent system is that the companies should
negotiate and reach a reasonable solution
Hope for the “Nuclear Option”?
• Critics of current software patents are
hoping the current Apple/Samsung/
Google/Microsoft patent wars worsen
– Provides a focus for what is wrong with
the system
– Without a well-understood breakdown that affects
people’s lives there is little pressure to change broken
policy
• A bigger version of the 2005 threat of having the
Blackberry network taken down during RIM vs. NTP
IP for Software
• Copyright over software was narrowly
interpreted with an eye to the preservation of
competition
• Software patents are increasing the type of
material covered
Synthetic Biology
• Meant here to be the identification
of generic functional components
for biotechnology
• Issue: Patents are covering genetic sequences
– This is like allowing software patents at the infancy of
computing
– Current developments are at the level of logical operators
• Worry that basic building blocks will become
patented, making progress more difficult
Synthetic Biology (2)
• Scientists considered trying to use copyright to
mirror the creation of GPL software
– Danger in not being able to predict what would
happen
– 90 years past death of creator is a lot longer than 20
years
• Current approach is to put designs into the public
domain by publishing them as they are created
– Requires researcher/institutional buy in
– Lacks ability to motivate those using components to
do the same
Assn. f Molecular Pathology vs. USPTO
• 2009 complaint against claims on isolated genes and
diagnostic methods in seven patents owned by Myriad
Genetics and Univ. of Utah
• Plaintiffs argued
– the isolated genes are unpatentable products of nature
– diagnostic method claims are thought processes that do
not yield real world transformation
• Lawyers assumed case would be thrown out
– March 2010, Judge Sweet ruled claims were invalid
– July 2011, Federal Circuit court partly overturned decision,
allowing all isolated genes and some of the diagnostic
methods
– This or similar cases went to US Supreme Court
Synthetic Biology (3)
• US Supreme Court
– Ruled that isolated genomic DNA molecules were products of nature
and therefore not patent eligible subject matter
– “what is patented must be made different by human hands”
• USPTO lists factors in favor of eligibility
– is a non-naturally occurring product and is markedly different in
structure than naturally occurring products;
– recites elements or steps in addition to the judicial exception(s) that
meaningfully limit claim scope;
– recites elements or steps that are more than nominally or tangentially
related to the judicial exceptions(s);
– recites elements or steps that are more than merely applying or using
the judicial exception(s);
– recites elements or steps that include a particular machine or
transformation of a particular article; and
– recites one or more elements/steps that are not conventional in the
relevant field.
Technology and IP
• Often hard to map policy for one form of
expression/invention to other forms
• Question of whether congress, agencies, and
courts can coordinate their actions