VFAT patent avoidance and patent workarounds [LWN.net]

VFAT patent avoidance and patent workarounds

Posted Jun 30, 2009 8:12 UTC (Tue) by bokr (guest, #58369)
Parent article: VFAT patent avoidance and patent workarounds

Perhaps it could be fruitful to recall the origin of the
authority for Congress to create patent and copyright law.
It's only a few lines in the Constitution:

Article. I. Section. 8. The Congress shall have Power
[... many "To ..." items elided] ...
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; ...

That's all. Clearly (to me), this was not intended to allow
Congress to create laws that license neo-luddites to abuse
said laws to impede the "Progress of Science
and useful Arts" for any reason -- perhaps least of all
as a means of hobbling competition with their own outdated
and/or inferior technology.

Nor, it seems clear to me, was this provision of the Constitution
meant to permit or nurture the existence of patent-trolls, who if
anything impede rather than "Promote the Progress of Science and
useful Arts," and who are generally neither Authors or Inventors.

Exclusive Right can not be interpreted as a right to enforced
dis-use and be consistent with Promotion of Progress!

I am against software patents, but a practical way to "Promote
the Progress of Science and the useful Arts" might be to provide
legal immunity against patent infringement claims for non-profits
and academic and research entities, as well as entrepreneurial
businesses grossing less than say a million dollars.

After some product containing a patented entity is making real
money in the market, then the first to achieve this could have special
rights to a cap on royalties, and others would have to negotiate with
the patent owner or stay under the million gross limit.

This would provide incentives Promoting Progress through competition.
And FLOSS could promote progress as it does now, through cooperation.

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US constitution vs patents

Posted Jul 1, 2009 13:07 UTC (Wed) by pjm (subscriber, #2080) [Link]

A couple of years ago, people made this sort of argument in challenge to the extension of copyright duration, arguing that it doesn't promote progress (especially the extension of copyright of works by already-dead authors). The judge ruled that just because the constitution doesn't explicitly allow a law doesn't mean that legislators can't pass that law.

(Sorry I have no references. No doubt I'm not exactly reproducing the arguments on either side.)

US constitution vs patents

Posted Jul 3, 2009 3:19 UTC (Fri) by njs (subscriber, #40338) [Link]

I believe you're thinking of Eldred v. Ashcroft. The US Congress certainly *does* need authorization from the Constitution to pass laws; that's one of the basic principles of US law. (The Constitution basically says "here's a list of things Congress can pass laws about, here's a list of things that no-one can pass laws about (regulating speech, etc.), everything not mentioned here the states can do whatever they want with.")

IIRC, the Supreme Court wriggled out of the Constitution's language about copyright being "to promote the progress of science and useful arts" by saying that it was complicated to say exactly whether progress was hurt or helped by copyright extension, and so they would leave that up to the legislature, who has more resources to figure out tricky questions of this sort. Kind of lame.

VFAT patent avoidance and patent workarounds

Posted Jun 30, 2009 17:09 UTC (Tue) by drag (subscriber, #31333) [Link]

It's not up to you to make those sort of decisions wheither or not patents in their current form are constitutional or not.

It's up to the supreme court and they ruled some years ago in a manner that is interpreted as allowing software patents.

Currently in order to get something declared unconsitutional you'd have to get into a patent case and then fight your way up to the supreme court and get them to agree with you.

If you want to go that route I hope that you have:

1. About 5 years or so.
2. Best lawyers in the country
3. Several million dollars burning a hole in your pocket.

Because that's about what it would take to even have a ghost of a chance to win a case like that.

And everybody and their mom will be fighting you. For two reasons:

* There is still doubt that pure software patents are 100% legal.
* There are a lot of very good lawyers that make very good money on software patent BS.

So if you....
Win: You put a large number of very wealthy and experienced legal people out of work.

Lose: You essentially destroy any chance of fighting software patents until you get Congress to pass a law making software patents illegal.

VFAT patent avoidance and patent workarounds

Posted Jul 2, 2009 5:47 UTC (Thu) by grahammm (guest, #773) [Link]

And that shows that the current advice that a practitioner should never look at patents also goes against the intent of patents. This shows that patents are intended to be a mechanism for sharing knowledge amongst practitioners. If practitioners do not read patents, or if they are written in 'lawyer speak' rather than language understood by the practitioners, then they are not serving to "promote the progress..".