also have tremendous respect for your opinion and
I completely agree with you
that software patents are a terrible problem. I too found the statement by PJ
that you quoted rather jarring. I'm glad you are calling attention to
it.
OTOH, after following this case for a while, I agree with what Judge Alsup
actually said about patents versus copyrights in his ruling:
[...]
this trial showcases a distinction between copyright protection and patent
protection. It is an important distinction, for copyright exclusivity lasts 95
years whereas patent exclusivity lasts twenty years. And, the Patent and
Trademark Office examines applications for anticipation and obviousness before
allowance whereas the Copyright Office does not. This distinction looms large
where, as here, the vast majority of the code was not copied and the copyright
owner must resort to alleging that the accused stole the “structure, sequence
and organization” of the work. This phrase — structure, sequence and
organization — does not appear in the Act or its legislative history. It is a
phrase that crept into use to describe a residual property right where literal
copying was absent. A question then arises whether the copyright holder is more
appropriately asserting an exclusive right to a functional system, process, or
method of operation that belongs in the realm of patents, not
copyrights.
[...] The Supreme Court explained that only patent law can give
an exclusive right to a method [...]
[...] The Supreme Court went on to
explain that protecting the method under copyright law would frustrate the very
purpose of publication [...]
I think the primary reason
copyrighting software is considered to be healthier than software patents is
precisely the realm of things covered by each form of protection.
Extending
copyright protection to something that is currently in the realm of things
covered by patents would make a bad situation substantially worse because of the
reasons given by Judge Alsup: copyright protection is far easier to obtain and
lasts almost five times longer.
Therefore I think it is possible for
someone to believe that Oracle should have applied for patent protection instead
of relying on copyright protection and at the same time believe that software
patents are inherently bad. Even though the USPTO often does a very poor job of
filtering out obvious software patents**, I don't think Sun/Oracle would have
been able to obtain a patent for the Java APIs due to both obviousness and prior
art. Saying Oracle should have applied for a patent is very different from
saying they should have been granted one.
Even so, the statement you
quoted could be easily interpreted as an endorsement of software patents which I
am sure was not what PJ intended. She continues to be very vocal in her
opposition to software patents.
**Even if the USPTO got its act
together and filtered out all obvious software patents, I still think software
patents would be bad. For example, I think the FFT is non-obvious but a patent
on FFTs would have been a disaster.
---
Our job is to remind ourselves
that there are more contexts
than the one we’re in now — the one that we think is reality.
-- Alan Kay [ Reply to This | Parent | # ]
| 
