Thursday, November 22, 2012

Richard Stallman and Professor Duffy Clash - Solutions to the Software Patent Problem - Santa Clara University - November 16, 2012

I signed up for the Santa Clara University Law School conference Solutions to the Software Patent Problem then nearly decided to skip it. I didn't need the MCLE and I didn't want to take the day off. It sounded like rain, traffic, etc. Further, I didn't feel like listening to proposals all day long to eliminate or reduce the value of software patents. I didn't expect a warm welcome as a software patent attorney either. Maybe I would be viewed as part of the problem! Yet I felt compelled to attend to hear how others might eliminate my job fixing the "software patent problem."

Despite these misgivings, it was a good conference with 34 presentations! The caliber of the speakers made it interesting and each had ten minutes to propose a solution to the software patent problem.

Of course part of any good conference is meeting people and seeing old friends at the breaks. I talked with my colleague and friend Michael Barclay about his hobby of learning difficult guitar pieces, Eric Clapton's habit of self-recording before he joined John Mayall, the book Guitar Zero about a NYU professor's sabbatical learning the guitar and to check out Eric Clapton's isolated track of "While my guitar gentle weeps" on Youtube.

I didn't convince Joe Mullin, the prolific journalist at ars technica, that Apple's damage award against Samsung is needed to address the free riding problem. Joe said all of the similarities between the Samsung products and Apples patents were just the result of competition.

I met Richard Stallman, founder of the Free Software movement, and fabulous hacker of Emacs and GNU used with the Linux OS. He convinced me that the latest revision of his book was worth getting and gave me "GNU and Linux - the Dynamic Duo" stickers for my kids. We have to convince the kids, right? I had an interesting talk with a patent damages expert, Elvir Causevic of Ocean Tumo, and met SCU law students such as Michael Quinn and William Jacobs, and others. No one seemed to cared if you were an academic, an executive, a public interest advocate, a businessman, an entrepreneur, or even a software patent attorney.

It is too late tonight to summarize all the proposed solutions but if you are interested, I would start by reviewing Santa Clara Law School's conference resources page. Note the conference was both streamed (except for Richard Stallman's talk - he did not want to use any Microsoft product) and videotaped.

Most speakers proposed various changes to US patent law, PTO rules, and/or how they are implemented today. For example, Professor Love argued patent trolls often assert patents near the end of the term so we could cut that problem off by increasing the cost or frequency of maintenance fees. Professor Arti Rai argued the PTO needed to rigorously apply the written description requirement. Professor Lemley argued that we need to eliminate functional claiming. Claims should not be interpreted to cover all implementations of a given function, but just the structures and equivalents described in the specification that perform the function. Some of the solutions were thought provoking, but as the day wore on, some speakers noted there would be no silver bullet.

Professor John Duffy of University of Virginia Law School proposed we must raise the nonobvious requirement. It seemed persuasive and likely to be adopted in practice. He had read some speech recognition patents and saw the value in patent protection of such complex computer software related inventions. He said patents are needed to induce these types of inventions. To Professor Duffy "worse than a patented technology that burdens the public is not having a technology at all."

Professor Duffy seemed to be building upon his paper with Professor Abramowicz's The Inducement Standard of Patentability, Yale Law Journal, 2010 that noted in Graham v. Deere the Supreme Court held the nonobviousness requirement was intended to limit patents to only those inventions which would not be disclosed or devised but for the inducement of a patent.

During the Q&A following Professor Duffy's presentation, Professor Duffy suggested something that could be taken as criticism of Richard Stallman's proposal. Richard raced from the back of the room to the front and was handed a microphone. He shouted "So many stupid insults—and mistakes! I proposed a way to solve the problem! It's elegant, and it gets right to the point. Your criticisms are completely wrong." His proposal? Deem all computer related patents not infringed. For details see: Stallman, Let's Limit the Effect of Software Patents, Since We Can't Eliminate Them

As to the need to induce inventions? Mr. Stallman's response: Consider the MP3 patent that caused a lot of harm. It's not trivial, it came from a research institute. But we can fund research institutes in other ways. Okay, but before we abolish software patent protection tell me exactly what are the other ways and how do we know it will be better? Will falling back to a trade secret regime be better?

Professor John Duffy seemed to be taken aback by Mr. Stallman's heart felt comments, but noted he respected Mr. Stallman's views to which Mr. Stallman responded don't give me your irrelevant flattery. I like Mr. Stallman's bracing honesty and he is a very smart guy, but Professor Duffy's proposal seemed more likely to be adopted than Richard Stallman's.

Given this type of exchange, the money involved, I don't expect the software patent controversy to end. We have debated solutions, and the PTO, federal courts, the CAFC, and even the Supreme Court have given inconsistent and confusing guidance on software patents for 40 years. I hear we don't even agree on the definition of a software patent. This conference was worthwhile, but mainly gave notice the software patent debate is not likely to end soon.

Updated Nov. 27, 2012: Professor Risch does a great job of articulating the software patent debate in his article today: Two Software Worlds

Copyright © 2012 Robert Moll. All rights reserved.