Talk:Choosing words to use in legal proposals

About making freedom of speech trump patents

(about this section)

This theory has problems:

• be_subservient_to_free_speech_and_promoting_the_progress

I don't see how this idea helps. The US legislature already has this, and they have probably the world's worst patent situation.

My point is that the existing laws ignore this. You would have to go to court (possibly all the way to SCOTUS) on free speech grounds and most that play the patent game don't want to drop patents or are offered a settlement if they make enough trouble. So the point is that US has good theory but bad practice and this can be improved through legislative changes.

ACLU took the freedom of speech argument to the CAFC in in re Bilski but didn't get anywhere. ([hhttp://www.aclu.org/pdfs/freespeech/in_re_bilski_aclu_amicus.pdf brief]) I think SFLC's brief, and maybe also the FFII brief used freedom of speech arguments in Bilski v. Kappos amicus briefs, but also got nowhere. Ciaran 17:57, 24 October 2010 (EDT)

The SCOTUS punted. Perhaps they don't feel the proper argument has been made. Enhanced arguments and a future court could be what we need. You can't escape the Constitution and the reality of the unjust abridgment. You can't escape that copyright law, even with its faults, clashes strongly with patent law. I think it's a matter of time.

You can always reword or change the page, but I tend to be persistent on this point as a natural approach to what I argue. The great argument made by Salin in 1991 (which may not have been presented faithfully to one of these courts) and by others have not stopped being good arguments. The Court might need time or want more. Look, State Street, the target of the 1991 paper, is now dead (I believe). Jose X 19:08, 24 October 2010 (EDT)

• building things at home

People only do that in small quantities, so industry is not worried. Industry worries about mass production. Second, I think there are already exceptions in patent law for private use.

I think I referred to something being buildable (maybe I should clarify that) in a physically possible way.

Now, if the license doesn't allow end user installation and you worry about patent problems (under this new system), then don't buy that software or don't sell it.. this opens the door to open source and to closed source by reasonable companies that don't try to prevent their users from doing something natural.

(I don't understand this. Ciaran 17:57, 24 October 2010 (EDT))

The part about "buildable" means that if I can write code (or install someone else's code) to achieve the effect in software, then I cannot infringe, even if later I go and buy that same product off the store shelf preloaded with the software as one product. The mere fact it can be done is sufficient and would allow mass distribution as a vendor value-add.

The other part was me considering a scenario where someone believes the software can be coded and installed (and hence avoid infringement), but, since the only product they have that achieves that is not licensed to allow installation (that's the assumption), then they might worry about infringement. In these cases, where someone might later claim you are infringing their patent and you worry you can't "build the system", then a "quick" way out would be to use FOSS or some other software/tools that you can in fact confidently and legally put together at home (or at work). So I'm just giving an example where a person might threaten lawsuit and you don't have immediate proof of concept on hand but you solve the problem by switching software (enabling you to confidently show proof of concept for that other software).

If you don't understand, could you clarify more or hint at what you think I might be saying. Jose X 19:08, 24 October 2010 (EDT)

• a way to create that invention cheaply as an end user

Doesn't work - the person who distributes the "way" can be done for contributory infringement or incitement to infringe :-( Sucks.

No. The idea is that today there would be problems perhaps unless you challenged it far enough in court, but the point of the discussion is to explicitly change law so that there would be no doubt this would not be infringement of any kind. In other words, explicit law would put free speech and progress ahead of monopolies in a natural and appealing-to-justice way.

Ok, it should probably be clearer then that you're not referring to any current legislation but to a proposal for future legislation. I guess this would apply for all types of patents, not just software patents. Ciaran 17:57, 24 October 2010 (EDT)

Yes, software would fall out as a common case solution, but the proposed law would be open ended, avoiding the need to make software "special" or define it in exacting detail. Jose X 19:08, 24 October 2010 (EDT)

• length of patent duration should be lowered

The duration of patents is set to a minimum of 20 years by TRIPS.

Ciaran 17:16, 24 October 2010 (EDT)

Well, if people don't want to renegotiate that what can I say. I'm mostly worried about "product of the mind" technology like software, business, fiction, mathematics, etc. Jose X 17:30, 24 October 2010 (EDT)

Renegotiating TRIPS is possible but it's a huge task - bigger than getting software removed via legislation (which is already a huge task). If another, broader movement springs up to call for renegotiation of TRIPS in ways that we like, we should support that, but otherwise it's not worth giving much attention to.

A second possibility is to declare that certain things (such as software) are not patentable, and then set up a separate system, similar to the patent system but with a shorter duration. By not being "patents", these new things wouldn't be governed by TRIPS. Again, lots of work. Ciaran 17:57, 24 October 2010 (EDT)

Hartmut's 2 rules

I think these two rules (source) are the state of the art:

1. A set of instructions for solving a problem by means of an automated system consisting only of generic data processing hardware (universal computer), also called “program for computers” or “computer-implemented solution”, is not an invention in the sense of applicable substantive patent law to a European patent with unitary effect, regardless of the form under which it is claimed.

2. A claimed object can be an invention in the sense of applicable substantive patent law to the European patent with unitary effect only if it contributes knowledge to the state of the art in a field of applied natural science; an invention is a teaching about cause-effect relations in the use of controllable forces of nature.

. Not sure. Ciaran 19:45, 21 July 2012 (EDT)