Today’s Topics Software IP Patents Public and private commons Policy design

The Turing Machine Challenge The computer is the meta-machine and meta- medium Software is a form of expression – Should it be covered by copyright? Software is also a description of mechanism – Should it be covered by patents?

The Case of Copyright Software developers wanted to make sure others could not steal their work Many worried about copyright blocking progress – Software is clearly additive as each system contains numerous subsystems, etc. – Where there are “an infinite” number of ways of telling the buddy cop story there are few good ways of performing some functions Copyright used to keep others from copying the code

The Case of Copyright (2) Court interpretations have minimized negative effects Copyright does not cover – Performing the same function – Picking the most efficient way to perform a task – Meeting a market demand – Decompilation to create competing product In effect, copyright is used to keep others from copying the code – Cannot hack in and steal code – Cannot take code you wrote for hire with you to another job without prior agreement

General Public License: A Side Effect Software copyrights have enabled creation of software commons Since copyright is automatic, creators of software code can require particular behaviors from those who reuse it – Anyone can use the software without restriction – The source code must be made publicly available with the same license Variations on such a license exist

The Case of Copyright (3) Does not mean there were no issues: Apple sued Microsoft in 1988 for similarities between MS Windows and Apple’s OS Xerox sued Apple for violation of its copyrights Steve Jobs said – “Picasso had a saying - 'Good artists copy, great artists steal.' And we have always been shameless about stealing great ideas.” Legal system is effectively the game engine monitoring competing parties

Patents Patents motivate inventors to invest effort and money in economically valuable innovation Patents cover instantiations, not ideas – Cannot patent the idea of catching mice with a machine – Can patent a mechanically-enabled method of catching mice Innovation must be novel – Not obvious to a “person having ordinary skill in the art” They provide rights for derivative works – Motivating negotiation US patents last 20 years – After that the design can be used freely by all

Software Patents The boundary between ideas and methods F = ma is not patentable But what about: If (know F) and (know a) then m = F/a; Else if (know F) and (know m) then a = F/m; Else if (know a) and (know m) then F = m * a; Current interpretation allows almost any computational process to be patentable – It still must be novel and non-obvious

Software Patents (2) Aside on software patent claims – Must specify a method (not just a goal) Except …. means plus function claims – Claim a “means for …” where the method is that described in the specification and equivalents – Slippery slope for determining method Importance of understanding of obviousness – Person having ordinary skill in the art (PHOSITA)

Software Patents (3) Today there are tons of software patents Much of the basics of computing developed prior to the patent-happy practices of today Limitations to copyright do not hold for patents

Software Patents (4) Mobile computing is not so lucky Example – Swipe to unlock (US patent 7,657,849) 31 pages to describe the invention Declared “obvious” by Dutch judge but not in the US Result is a consolidation of intellectual property in mobile devices – Vision of patent system is that the companies should negotiate and reach a reasonable solution

Hope for the “Nuclear Option”? Critics of current software patents are hoping the current Apple/Samsung/ Google/Microsoft patent wars worsen – Provides a focus for what is wrong with the system – Without a well-understood breakdown that affects people’s lives there is little pressure to change broken policy A bigger version of the 2005 threat of having the Blackberry network taken down during RIM vs. NTP

IP for Software Copyright over software was narrowly interpreted with an eye to the preservation of competition Software patents are increasing the type of material covered

Synthetic Biology Meant here to be the identification of generic functional components for biotechnology Issue: Patents are covering genetic sequences – This is like allowing software patents at the infancy of computing – Current developments are at the level of logical operators Worry that basic building blocks will become patented, making progress more difficult

Synthetic Biology (2) Scientists considered trying to use copyright to mirror the creation of GPL software – Danger in not being able to predict what would happen – 90 years past death of creator is a lot longer than 20 years Current approach is to put designs into the public domain by publishing them as they are created – Requires researcher/institutional buy in – Lacks ability to motivate those using components to do the same

Assn. f Molecular Pathology vs. USPTO 2009 complaint against claims on isolated genes and diagnostic methods in seven patents owned by Myriad Genetics and Univ. of Utah Plaintiffs argued – the isolated genes are unpatentable products of nature – diagnostic method claims are thought processes that do not yield real world transformation Lawyers assumed case would be thrown out – March 2010, Judge Sweet ruled claims were invalid – July 2011, Federal Circuit court partly overturned decision, allowing all isolated genes and some of the diagnostic methods – This or similar cases went to US Supreme Court

Synthetic Biology (3) US Supreme Court – Ruled that isolated genomic DNA molecules were products of nature and therefore not patent eligible subject matter – “what is patented must be made different by human hands” USPTO lists factors in favor of eligibility – is a non-naturally occurring product and is markedly different in structure than naturally occurring products; – recites elements or steps in addition to the judicial exception(s) that meaningfully limit claim scope; – recites elements or steps that are more than nominally or tangentially related to the judicial exceptions(s); – recites elements or steps that are more than merely applying or using the judicial exception(s); – recites elements or steps that include a particular machine or transformation of a particular article; and – recites one or more elements/steps that are not conventional in the relevant field.

Technology and IP Often hard to map policy for one form of expression/invention to other forms Question of whether congress, agencies, and courts can coordinate their actions