Intellectual Property Issues in Software (1991) / Chapter Skim
Currently Skimming:
5 The Open Agenda
5 The Open Agenda
Pages 81-94
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 81... ...
While a broad analytic structure remains a future goal and a worthy objective of public policy research, the two-day forum whose discussions are summarized here was an important step in aiding the communications among the technical and legal experts who often use different vocabularies and have conflicting problem-solving approaches. Software is evolving from a technology originally conceived as a flexible and inexpensive mechanism for controlling computer hardware to products that embody the functional processes and knowledge base of entire industries and dominate the costs of computer usage.
|
From page 82... ...
that of their software suppliers. With as much diversity and heterogeneity as are found in this sector, it should not be a surprise that discussions involving intellectual property protection for software should generate great controversy and complicate agreement on a national policy agenda.
|
From page 83... ...
It cannot be handed down from Capitol Hill with pristine purity and crystalline clarity in its application to all circumstances for all time." Indeed, most should not be and some cannot be. Automated reverse-engineering and recompilation techniques, for example, may be used to create derivative products that offer the same functionality as the original software but are so dissimilar in appearance and structure that even the most astute judges and juries will be hardpressed to identify illegal copying.
|
From page 84... ...
First, it provides perspective on where the value, or intellectual property, lies in a particular piece of software and, therefore, on what elements warrant protection. Second, a broadly accepted notion of software-one that embraces its numerous manifestations and its complex underpinningscan guide the application of intellectual property law.
|
From page 85... ...
without the benefit of the foresight that would go into a deliberately crafted set of laws. Mention the term sui generis at a gathering devoted to softwarerelated legal issues, however, and strenuous objections are sure to
|
From page 86... ...
I would submit, even if you went to a different system, you would still find the same problems." Added attorney Ronald Laurie of Irell & Manella, "I buy copyright, as opposed to intermediate solutions, because the law in this country, whether we like it or not, evolves interstitially in court. And as someone who spends a lot of time in court, I would feel much more comfortable arguing my case by analogy." Moreover, laws drafted to address today's concerns could be rendered obsolete by future advances in technology, which will engender unanticipated legal issues.
|
From page 87... ...
I think that what we should be relying upon is the evolution of the law as it is interpreted in the courts...." While many in the software industry favor staying within the existing legal structure, a substantial number believe that the system should provide better guidance and that copyright and patent laws could be applied more coherently. Thus it is the vast middle ground between the extremes of a do-nothing approach and a sui generis system where most of the discussion and most of the disagreement occur.
|
From page 88... ...
According to Reichman, copyright law accepts all comers and it allows the market to determine value, the very opposite of patent law, which requires the patent examiner to determine merit according to the novelty and nonobviousness standards. From a behavioral standpoint, investors in applied scientific know-how find copyright attractive because of its inherent disposition to supply artificial lead time to all comers without regard to innovative merit (Reichman, 1991~.
|
From page 89... ...
In the United States, the patent approval process takes nearly twice as long, greatly increasing the chance that an innovator will be blindsided by a competitor whose application was filed earlier. The danger is substantially increased by the prevailing practice of shipping software products in object code.
|
From page 90... ...
To correct this shortcoming, Esther Dyson proposed that the Patent and Trademark Office create a database that describes existing software, which would help innovators determine the "prior art" in the field.3 The second issue, that of losing out to a competitor whose application was submitted earlier, is more problematic because of the short life cycle of software products. Thus the competitor who loses out on a patent has the option of licensing the innovation from the patent holder, if that option exists, or of foregoing the next generation of the product-development cycle.
|
From page 91... ...
But the magnitude of the assets required to launch a successful software project is growing very rapidly, and the constraints on substitution of independent implementations of needed function are rising, too. Barriers to product substitution are rising as industry standards aimed at increased interoperability gain acceptance and end users insist on familiar interfaces.
|
From page 92... ...
On the practical side, how is either the patent examiner or the software entrepreneur to determine whether a potentially patentable software idea has already been used in available computer code, and is thus part of the prior art? How is the developer of a commercial software offering to be able to ensure that the company's programmers are not reinventing ideas that have been submitted for patents not yet issued?
|
From page 93... ...
3. The LEXPAT database can provide easy and rapid access to copies of software patents, if the searcher wishes to examine a particular patent and knows its patent number.
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.