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Authored by: macliam on Thursday, April 04 2013 @ 07:52 PM EDT

I regret having to make this posting. I value my anonymity, and would wish to maintain my presence on Groklaw separate from my professional life. Moreover, I have made regular IANAL disclaimers in my postings, and that I would have thought would be sufficient to establish that I am not an authority on legal matters. Therefore I do not consider it fair or appropriate that I should be asked to supply professional details that could lead to my Groklaw username being more easily associated with my true name and professional identity. Nevertheless I will respond. If I leave some of the details vague, then it is for the reasons stated above.

I am not a lawyer. I am an academic. I would regard legal science as being probably one of two disciplines closest in its nature to my own. All my working life, my working environment has been dominated by open source software. I am typing this comment on a desktop computer running Fedora 18. Just about all aspects of my working life other than standing up to deliver a lecture involve open source software in some shape or form. Therefore it is important to me that the software that makes my working life possible remains unencumbered by intellectual property rights other than those of the various open source licenses etc. under which that software is made available. I have been reading Groklaw from the early days of the SCO v. IBM lawsuit (indeed from before the time that the case got assigned to Judge Dale Kimball, if I remember correctly).

I first started thinking about patents about nineteen years ago, when Unisys asserted patent rights on the LZW compression algorithm that had been used in the GIF standard. At that time, I was working through in my own mind all the “software is math, therefore not patentable” arguments, though at that time I had never looked into the details of patent law. I formulated the argument that, in a multiuser system, with the CPU switching between thousands of processes, the execution of a logical or mathematical algorithm in a high level program would not correspond to a well-defined physical process on the computing device.

Soon afterwards, I started familiarizing myself with an area of intellectual property law, not patent law, but copyright law, because I was making material available on a public website, and needed to be certain that the material that I was posting was in the public domain.

After the Federal Circuit judgement in In Re Bilksi, I started to take more of an interest in patent law. In particular, I followed the PatentlyO blog, and each time that a Federal Circuit judgement was discussed, I downloaded the opinion, read it for myself, and then looked at the discussion and the comments on PatentlyO. I took a particular interest in those judgements that concerned computers and the Internet, and also any that concerned patent-eligible subject matter (following in particular the cases Classen, Mayo and Myriad as they went though the Federal circuit). But I also followed the details of many cases that hung on questions of claim construction and determination of infringement of patent claims. (And I should emphasize that the judgements always concerned whether or not the alleged infringing device infringed the claims, not whether the alleged infringing device as sufficiently similar to the device disclosed in the patent application.) Also, I would check each month to obtain from the website of the PTO a listing of all judgements of administrative patent judges that included the word ‘Bilski’. I would follow the legal arguments as to the grounds on which the PTO examiners had invalidated claims, and the grounds on which the boards of adminstrative patents judges affirmed or reversed the decisions of the examiners. I have been following these judgements for several years now.

I have also been continually reading and re-reading the Supreme Court judgements in the relevant cases, from Benson onwards. I have also been working through a number of Federal Circuit cases. Also I found on the Web material on the whole history of Benson's application, from the time the application was submitted, to the final opinion of the Supreme Court, and worked through all the details of the operation of the re-entrant shift register described in Claim 8 of Benson's application that was before the Supreme Court. So, I would claim that I have been doing my homework, reading the judgements from Funk Bros. through to Mayo, and reading the briefs of the recent cases. And naturally, having spent hours of my time reading though all this material, I had thought that Groklaw was an appropriate place to discuss some of the issues, and for developing the thoughts that resulted from studying those cases.

And I am not unaccustomed to reading through and assessing logical arguments. In my own academic field, the research papers are extremely technical and difficult to read. Academics in the same department often cannot talk meaningfully about one another's research because the research is so specialized and requires so much prior knowledge acquired though years of study to make sense of current research papers in a given field. Papers in legal journals, legal opinions and legal briefs are, by comparison, far more easy to read and (I claim) understand. And we are not yet living in the world described in Isaac Asimov's science fiction story The Dead Past, where it is considered “unethical” for an academic to take an interest in areas outside their own special research field. I honestly don't see why I am disqualified from commenting on legal matters simply on the grounds that I don't have a J.D. But if any views or opinions I express are incorrect, I would expect them to be countered with other opinions that explain any fallacies. Certainly I don't expect anyone to tell me the “examine my biases” or an appeal to authority. If someone considers that my arguments and opinions are wrong, I would normally expect an explanation, rather than just been told to shut up because a colleague is a lawyer. That is not a mode of examining or discussing issues that I had encountered before now.

And certainly, on the question as to whether, and to what extent software belongs within my own academic field, I personally consider that I have sufficiently many qualifications (Ph.D., research papers, decades of teaching experience, tens of thousands of lines of computer code written mostly in Perl and Python) to be entitled to form my own judgement on such matters, and form my own opinion of the strengths and weaknesses of such arguments and judge their effectiveness if put forward in the form of a legal argument against software patents. And I own, and have read standard textbooks like Computability and Logic by G.S. Boolos and R.C. Jeffrey, and indeed I used to post on such matters on USENET newsgroups many years ago. There may be many academically well-qualified lurkers on Groklaw, but I would not accept the authority of anyone else as to what opinions I should hold concerning matters pertaining to my own academic field. I simply don't see the rationale for feeling obliged to defer to anyone else's judgement in such matters of my own profession and working life.

To me it seems obvious that if one is to make an effective case against ‘software patents’ one needs to examine the current law carefully, and examining the arguments from the other side with respect, so that one can later locate any fallacies and weak points in those opposing arguments and strengthen one's own case. Because it seems to me that merely “grumbling” about software patents is not going to make them go away. And I would have thought that such discussion was consistent with the purposes of Groklaw.

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