Saturday 11h45 [Video]

Moderator: Jane Bailey

Speakers:

• Richard Gold, « The Reach of Patent Law and Institutional Competence »
• Jonathan Zittrain, Writing the Rules of War Between Free and Proprietary Software

RG: Patent and biotech. Talking of jurisdiction issues over questions of patent eligibility.

Don’t confuse eligibility, applicable to a class of inventions, with patentability, applicable to a particular invention.

Theories:

• It is question statutory interpretation only

  Hinges on the interpretation of « invention »: cannot limit to eligibility to what is known because then it’s not an invention

  Therefore, what is unknown in an invention unless legislature specifically says otherwise. BAD ARGUMENT: confuses a particular invention with type of invention.

• It is a technical and morally neutral

  To refuse a patent would be futile because in itself would not stop the invention bieng put to practical use.

  Patents may lead to accountability and spillover effects

  The very fact of allocating property rights alters the burden of persuasion re: limitation on use of invention

  Patents may provide holders with power over non economic decisions.

• It is essential to promote innovation. Courts should withold patents only when legislation specifically restricts it.

  Starting principle is that knowledge ought to be free unless a good reason exists to put it under private control.

  Lack of empirical evidence showing that patents actually encourage innovation and dissemination.

Example given using the reaction to the Harvard mouse.

JZ.

JZ is not behind the podium, he prefers to do his stuff standing in front. Just watch the video, he is, as always, a great speaker.

Today’s fire: free and proprietary software.

Software: lowers the barrier of entry for « inventors » (and explains bad software).

Taxonomy of software:

• Public domain
• Free (copyleft)
• Proprietary.

Analogy of the models using a cake/recipe metaphor. Software: it’s a cake, you eat it and it’s good.

But the recipe is usually given for public domain cakes. You always get it for Free cakes. Most often not for proprietary software (they could give you the recipe though and say if you do anything wth it you go to jail).

Licence terms: nope for public domain. Free: GNU licence. JZ give a How do deal with RMS 101. Viral threath, way overplayed: if you include GPL by accident, you never agreed to it, it’s only infringement and the viral clauses don’t apply to your proprietary code. Proprietary: well.. you all know how this goes.

SCO v. IBM.

Things at stake:

• 1. Free software is a way of producing social benefit. Not universal, but it matters in many areas. Yet because of work for hire agreements, there might be unvanted contamination.
• 2. Free software is too tasty a target for lawyers. e.g. easier to audit free software than proprietary software when stolen code is hidden.
• 3. Comparative IP and cyberlaw.
  Many people are trying to choose between linux and MS in LDCs. Or Linux and pirated MS. Attempt by MS and others to kill Free software so they don’t have to compete with it.