David A. Wheeler's Blog

Thu, 31 Dec 2009

Moglen on Patents and Bilski

Eben Moglen has a very interesting presentation on patents (including comments on Bilski) that was originally presented on Nov. 2, 2009. Software patents and business method patents have been a disaster for the U.S. and world economy, and he has some interesting things to say about how we got here (and how it could be fixed).

One interesting point he made, which I hadn’t heard before, is that there is a fundamental conflict between the patent system and the Administrative Procedure Act of 1946 (aka the APA). Nearly all of the U.S. government must obey the APA before creating new rules and regulations. According to the APA, U.S. agencies must keep the public informed, provide for public participation in the rulemaking process, establish uniform standards for rulemaking and adjudication, and provide for judicial review. In particular, agencies normally have to perform a cost-benefit analysis.

But the patent system pre-existed the APA. Patents, since they are government-created monopolies, can constrain people in the same ways that any other rule or regulation can. However, the government does not follow the APA to determine if each proposed patent should be granted. Instead, the old patent process was essentially grandfathered in instead, as a special exception to the APA. Because the APA is not considered when examining each patent, no one in government asks the normally-required question “How will each proposed patent be publicly reviewed before it is granted?”. Patents on ideas that are patently obvious are routinely granted, in part because there is no public review before they are granted and because the patent office (by policy) ignores most information available to the public. All because the patent-granting process is not required to enable public participation in the rulemaking process, in this case, the process for permitting the granting of a patent. Also, when examining a patent to determine if it should be granted, no one asks normally-obvious questions like:

Because the patent system predates the APA, all potential harms to society from a patent are completely ignored during the patent examination process. If patents were individually considered as new regulations under the APA, such questions would need to be carefully considered. That’s an interesting point Moglen makes.

It’s my hope that the Supreme Court will clearly stop software patents. We shall see.

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