During the current era, the cultural future is going to be heavily
influenced by the debate over the protection (or lack thereof) for
intellectual property concerning digital matters.

It is instructive to review the legal history of the patent-copyright
dichotomy concerning computer program protection. Most telling is this
Supreme Court ruling in 1978:

“To a large extent our conclusion is based on reasoning derived from
opinions written before the modern business of developing programs for
computers was conceived. The youth of the industry may explain the
complete absence of precedent supporting patentability. Neither the
dearth of precedent, nor this decision, should therefore be interpreted
as reflecting a judgment that patent protection of certain novel and
useful computer programs will not promote the progress of science and
the useful arts, or that such protection is undesirable as a matter of
policy. Difficult questions of policy concerning the kinds of programs
that may be appropriate for patent protection and the form and duration
of such protection can be answered by Congress on the basis of current
empirical data not equally available to this tribunal.”[FN19].

[FN19] Articles assessing the merits and demerits of patent protection
for computer programming are numerous. See, e. g., Davis, Computer
Programs [437 U.S. 584, 596]   and Subject Matter Patentability, 6
Rutgers J. of Computers and Law 1 (1977), and articles cited therein, at
2 n. 5. Even among those who favor patentability of computer programs,
there is questioning of whether the 17-year protection afforded by the
current Patent Act is either needed or appropriate. See id., at 20 n.
133.; PARKER v. FLOOK, 437 U.S. 584 (1978).

This was an open invitation by the Supreme Court directed to Congress
requesting that Congress simply do its job --- *LEGISLATE*.

Twenty-nine years later Congress is still sitting on its collective ass
while the rest of the World moves on. Did you ever wonder why the U.S.
is losing its competitive edge in the global struggle? Well it is not
because of Congress. It is because the American people passively sit by
and allow this kind of malfeasance to fester.

I have written my legislative representatives concerning intellectual
property in the Digital Age. Everyone who has an interest in the debate,
regardless of where their opinion falls, should express their opinion to
their  respective congressional representatives. Why wait for another
twenty–nine years for those non-elected, life-time appointed Supremes to
decide the peoples' business?

Those who don’t communicate with their representatives and then vote
have no right to subsequently bitch.

rjack

Yeah, they do. That's what our country's all about.

-- Larry

Perhaps Congress hasn't acted on software patents because it is not
unhappy with the state of the law.

There is no reason to believe the Congress is unaware of software and
business patents being allowed.  In fact, in 1999 as part of the last
patent reform bill, it added 35 U.S.C. 273 to add a prior user right
for business methods, because it was concerned that people who had
independently invented a business method but kept it a trade secret
because they felt that it was not patentable would be hurt by others
who might later get a patent on the same business method.

Clearly Congress was aware of business method patents, felt that they
should be allowed, but needed to correct a possible problem.

And it is not reasonable to have a patent statute that lists the types
of technology that is to be protected, beyond broad categories.  By
definition, patents are concerned with new technologies.  It would
punish the very inventors of new technologies if they had to wait for
Congress to list their technology before they could receive protection.

Perhaps. . .

Article I of the Constitution was drafted to establish the *legislative*
powers of the Federal government -- it is directed at Congress and not
the Judiciary.

Art I sec. 8 cl. 8:

"Section 8. 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;"

The job of the judiciary is to define the *boundries* of Congress's
powers established by the clause -- not to enumerate the *specifics* of
implementation. The clause is one of the most specific in Article I
directed at the legislative branch.

Because Congress is *happy* with a vague and inchoate law is no excuse
for incompetence. We have thirteen appellate circuits going in different
directions concerning the copyright/patent protection provided for
software. The Federal Circuit changes its mind every few months. The
trial lawyers love this situation, businesses -- especially small
businesses -- are intimidated and bled. IBM, Microsoft, and a few well
heeled, lawyered-up corporations bully the rest of the business world.

Perhaps you are happy with Congress being happy with the state of the
law. I'm not. I still believe the Congress should work for the people
and not the other way around.

Intellectual property has a valuable place in a capitalist economy.
The citizens through their representatives should define the specifics
of the role IP plays in that economy -- not a handful of lifetime
appointed lawyers in black robes.

rjack

It seem to be happy with the list of things protectable by patent.
It adopted the list in 1790, and the only change has been to update
the term "art" to "process."

You seem to be missing my point about Congress being "happy". The
present Congress is happy to sit on its ass and do nothing. The latest
reputable poll states that all of twenty-nine percent of U.S. citizens
are happy with the job Congress is doing.

Democratic principles dictate that legislators serve at the pleasure of
the voters. Anytime Congress wishes to escape responsibility for
difficult issues they pass a vaguely worded law and then leave it to the
courts to absorb the political heat for any specific interpretation.
Anothr similar tactic is to pass a law without the funding or means to
enforce it. Sixty-one percent of voters are now tired of this kind of crap.

One result of this responsibility ducking is that our intellectual
property laws end up for the most part reflecting the philosophical
views and prejudices of various appellate judges (especially the Federal
Circuit) and influential law professors.

Let's refer back to the Supreme Court in Parker v. Flook at the
beginning of this thread:

"Difficult questions of policy concerning the kinds of programs that may
be appropriate for patent protection and the form and duration of such
protection can be answered by Congress on the basis of current empirical
data not equally available to this tribunal.”; PARKER v. FLOOK, 437 U.S.
584 (1978).

See the "[C]an be answered by Congress. . ."? The Supreme Court is
*obviously* declining to *LEGISLATE* for the Congress -- could it be any
clearer?. That was twenty-nine years ago. That's over a fucking
*generation* ago!!!!!!!! Still no answer from Congress -- twenty years
into the Age of the Internet.

Just because the Congress is as happy as a pig in shit to sit and
endlessly quibble doesn't nullify the principle that they are elected to
*LEGISLATE* -- that's their defined job.

rjack

And, by not enacting special legislation regarding patents for software,
Congress has said that it should be treated the same as anything else
that can receive a utility patent -- same form, same duration.  And
therefore special legislation is not necessary.

But, as I said, it's not that Congress has done nothing.  (Ignoring you
is not the same as doing nothing.)  It enacted a special prior user
right for business method patents.  And a couple of years after Parker
v. Flook, it amended 17 U.S.C. 117 to address computer programs, and
in 1998 admended it again to reverse a court decision that it didn't
agree with.

You seem to ignore the facts, perhaps because they don't fit with your
rant.  And you seem to assume that we have a continual need for new
laws, even if Congress feels that the old ones are working reasonably
well.

But you are certainly free to suggest to your senators or representative
or whoever might listen to you legislation that addresses the problems
that you perceive.  Just as you are free to suggest possible legal
theories to the courts, in the form of amicus briefs.  Whether anybody
listens to you is another matter.

At least we agree Congress has enacted nothing to clarify the mess
caused by the scope conundrum of 17 U.S.C. § 102(b).

Your “facts” concerning Congressional action -- 17 U.S.C. § 117 and 35
USC § 273 – are irrelevant to the matter at hand. Those actions do
nothing to clarify the problem posed by the idea-expression dichotomy
and the proper application of IP law to software.

I have my rants and you have yours:

“The fact is, whenever a company invents a new technology, it’s never
sure whether it’s going to get sued or not,” Hollaar continues. “Well,
that’s life. . .
http://www.theinstitute.ieee.org/portal/cms_docs/tionline/tidec04.pdf

Well spoken Professor -- and very true. Small business and individuals
are left out of the American dream because they cannot afford the costs
and risks of litigation due to the lack of clarity in IP law. The
vagueness you so cavalierly advocate benefits trial lawyers and those
who can afford them.

Ahhh. . . promulgated with the true arrogance of the tenured
intelligentsia. Great punch line :)

rjack

Interesting quote, quite out of context.

For anybody actually reading the article (which starts on page 1, but
jumps to page 14, with the quote on page 15), you'll see that it is
about all the terrible things that will come from the passage of the
Induce Act (s. 2560 in the last Congress).

The bill never passed, but the Supreme Court adopted inducement as its
theory in the Grokster case.  (Maybe because of an amicus brief that
I submitted.)  And have all the dire predictions about the Induce Act
come true in the two years since the Grokster decision?  Nope.

Which has little to do with whatever has a bee in your bonnet ...

Yes, but if Congress declines this invitation, then one should assume
that the Supreme Court's opinion that software is not patentable is
good-enough law.

Yes, I know a later lower-court opinion (In re Alappat) muddied things,
but that's for the Supreme Court to clear up, not Congress.

--

http://ourdoings.com/
Amazingly simple photo sharing

In article <nm9d4zr3jgf....@grumpy-fuzzball.mit.edu> Bruce Lewis <brle...@users.sourceforge.net> writes:

The Supreme Court *never* said that.  Even in _Benson_, the Court said:
    It is said that the decision precludes a patent for any program
    servicing a computer. We do not so hold.
409 U.S. at 71.

On Jun 17, 11:32 am, rjack <rjack@com> wrote: