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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