Broad and untangible rights

Patents are broad shotgun rights, as opposed to precise and narrowly defined rights such as software copyright. Patent applicants phrase their applications as to make them as broad as possible and negotiate with the patent office over broadness of the grant. Broad, intricated and clumsy rights are bad for the market but more valuable for their owners.

Hartmut Pilch explains (9/2002):

The principal objection [against software patents] is broadness, not novelty or non-obviousness.

If swpat were reasonably narrow, nobody would want them, because in order to get them you have a lot of overhead (such as disclosure, writing an application, paying fees etc). Swpat can only be unreasonably broad or not be. But broadness violates basic constitutional rights of freedom of expression. Even if there was an economic rationale for such violations (e.g. market failures, stimulation of R&D), we should not accept them. But, there is no economic rationale. There is not a iota of evidence that swpat (with the unavoidable breadth) have any positive impact whatsoever on the software economy.

The reason why swpat are so broad lies buried in the concept of technical invention. This is why insisting on this concept is so important.

But as patents are broad neither a potential infringer nor the patent owner knows the exact scope of the right.

Are inventions unique?

A very intelligent objection was once posed in a blog

How can software patents restrict competition in a free market when they were not existing before they were invented?

The answer to this question is challenging. It imagines patents emerge, create new property right out of the wild. They give something new to the world. You feel reminded of copyright. Also the idea of disclosure would then perfectly make sense for patent law. For works such as those covered by copyright we assume that they are unique expression of the person who created the work. Some scholars doubt that and challenge the very concept of independent creation but let us overlook that for now. Complex copyrighted works as an opera are unique. No other composer can recreate them and come up accidently with the same. While all copyrighted texts could be recreated by a monkey and a typewriter that does not bear any significant likelihood. Therefore accidental slavish imitation is almost impossible, we don't need to check if a text of ours was written before by someone else, but if someone copies it we know he copied from us. It all depends on the existance of an individual author and the question where to draw the line to the cultural sphere. Even for stories there are narrative patterns which are found among different isolated cultures. Copyright laws protect works. Accidental copyright infringement cases only relate to broader cases such as a pun of a comic strip. Dilbert caricaturist Scott Adams for instance wrote that people inform him where he copied ideas from but claims he was not aware of these sources. Copyright regimes try to strike a balance regarding broadness and alleged copycat cases get more hairy the less unique the claims in court become. While in copyright a tangible "work" actually exists the protected object of patent law, the invention, is a virtual one with broad boundary.

Software-copyright is extremely complicated law. It is certainly wrong to say its better because it is more narrow and the assert that copyright only protects 1:1 copyright does not hold. But it is also misleading to say that Patent law and copyright are complementary and don't overlap.

Naive economists came up with models of "patent races". Their assumption is that companies invest strategically in inventive actions to find a solution to a problem and try to patent them. The winner, the first, takes all. In this case inventions would be something that compares to a mathematical proof or a scientific discovery. The individual who pursuits the patent does not matter much. If Columbus didn't discover America someone else would have found it. In fact Eric the Red discovered it before and more than 13 000 years before the Indians. If a supercomputer calculates the next 1000 digits of PI it is something that was not known before but any other computer would get the same result. Patent race models think in terms of prices which motivate companies to carry out the research and be the first to cross the line. Once the solution is discovered everyone else can use it without investment in research. So it sounds reasonable to give the first inventor a time-restricted monopoly right. The patent race model acknowledges the problem of independent recreation but assumes no one would recreate the invention after the disclosure of the patent.

The problem in the software industry is that almost any infringer was not aware of a patent and not all patentable conceptions are applied for a patent. You also find no software engineer who studies patents to get good ideas or find solutions. He solves his problems regardless of the patent. The sphere of patenting is detached from the sphere of development.

"Small enterprises generally adopt a rather negative position towards the current increasing granting of patents for software and algorithms because they fear that these will hamper or eventually even impede their work (more than 85%)." —German Federal Ministry of Education and Research (BMBF), Study of the Innovation Performance of German Software Companies, 2006, p. 86

Just because someone patents something does not mean that no other person had the idea before. The patent system here forces you to patent or become liable but we also emphasize in another point that patenting does not indemnify you against own infringements. Disclosure may be the more appropriate option as it challenges the novelty of the patent. All these are burdens put on developers due to the very existance on software patenting and market players cannot bear them.

Patents are broad shotgun rights, as opposed to precise rights such as software copyright.

Patent applicants phrase their applications as to make them as broad as possible and negotiate with the patent office over broadness of the grant. Broader rights are always beneficial for a patent owner. When patent attorneys can generalise the invention and make it broader than the final grant of the patent office, this demonstrate that patents do not cover a unique expression of an invention. The general process leads to the fact that patents are always broader than what was originally invented. Patents do not cover the blueprint of a machine but abstractions. The same inventor can talk to three different patent attorneys to write his initial application for a patent and would receive three different application proposals.

The equivalence principle even further broadens the scope of the patent. And what is the exact broadness of a patent? In an infringement case the litigator wants his patent to be broad. In an invalidity case a patent owner advocates to the court that his patent was narrow and thus should not get invalidated. Broadness does not only relate to the scope of the right but also to their potential scope. Broad, intricated and clumsy rights are bad for the market but more valuable for their owners.

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