Date: 2/20/02 1:19AM
Subject: FTC Hearings on Competition and Intellectual Property
I am a software engineer who has been working in the computer industry for 10 years. I am pleased to see that the FTC is addressing this rather disturbing trend in our country today. It is my belief that the proliferation of patents threatens to damage this country's role as a technological leader in the world today.
In no other industry is this trend more concerning than in the high-tech computer industry. Elementary software algorithms and design patterns, which are essential to the building of computer programs, are being patented by large corporations.
Up until recently Software Algorithms were not patentable subject matter. The introduction of patents into this field has created a great deal of friction in the community due to the fact that many elementary and fundamental algorithms are being patented with amazing speed. The nearest equivalent I can think of is the construction industry. Suppose that you are a builder and you discover that another builder has patented the idea of screws and nails. That builder either wants an exorbitant fee or doesn't want to license the patent at all. Admittedly this would make it more difficult, if not impossible, to produce a product of equal or higher quality. Although simplistic, this example illustrates what software developers go through every single day in order to do their jobs.
These elementary algorithms are the "screws and nails" of the software industry. To prevent programmers from using these ideas or from combining them in certain ways will cause irreparable harm.
Most of the patenting is being done by large corporations which can afford to build up their patent portfolios. Most often these patents are used against small companies to force them to pay royalties or to put potential competitors out of business. If Apple or Microsoft had been put out of business by IBM or HP when they were small, they wouldn't be the innovators that they are today. In addition many innovations come from the Free Software and Open Source Software movements, whose volunteer nature is at odds with the patent system. These innovative movements which consist of thousands of very talented and innovative people could be irreparably damaged by current trends.
To quote Thomas Jefferson:
"I assume it is a Lemma, that it is the invention of the machine itself, which is to give a patent right, and not the application of it to any particular purpose, of which it is susceptible." (taken from http://odur.let.rug.nl/%7Eusa/P/tj3/writings/brf/jefl220.htm)
The main problem with patents on software lies at the heart of this statement. Since software occupies a world between physical machine and copyrightable work, the expression of an idea in code has a functional element. Patents on software are seen to apply to *every possible expression of a given idea*.
Another problem stems from the fact that the USPTO does not adequately understand software and, as a result, has a lower standard of obviousness when reviewing software related patents. It is this lower standard which has allowed so many obvious algorithms to be patented.
I would like to direct your attention to the following online petition:
Thank you for taking the time to review my comments.
Gregory John Casamento