There have been a very few times where I've disagreed with Groklaw's PJ, but unless I'm misunderstanding her sentiment, I'll have to increment my instance counter ($pj{'disagreements'}++).
PJ quoted Professor Lee Hollar, who said:
"I'm proposing a new, limited patent-like protection. It combines the disclosure and claiming requirements of patents, so that the current database of patented technology can be substantially expanded, with copyright's infringement defense of independent creation. Because protection comes into being only when a registered innovation is actually used in commerce, many of the problems with "patent trolls" are eliminated. And providing such an alternative would allow more substantial examination of regular patents through greatly increased application fees and more stringent requirements. The protection is particular suitable for software developers who have created new techniques. Without such protection, there is no way for an open-source software developer to keep those who don't want to share with the community from using their new technique."
PJ then responded:
"I love this idea. And Amédee Turner, Queen's Counsel, Honorary Member of the European Parliament, will be speaking..."
I don't profess to know as much about the law as PJ, but I know plenty about the monetary resources of small development outfits, and "greatly increased application fees" doesn't sound like something developers on small budgets would love (taking for granted that we're stuck with software patents for now).
More stringent requirements sounds fine...I'd personally like them to be stringent enough that software doesn't qualify at all (a point of view I believe PJ shares). Most things that help stem the tide of software patent applications are probably to our benefit, however, the end of the statement made by Mr Hollar is what has me scratching my head.
In those last two sentences are a pair of comments about [open source] developers who have created new techniques. I suppose that here, again, it's reality (software patents exist) vs. the ideal world (software is protected by copyright alone), so if the comments are meant to address specific concerns that have been expressed by developers, I can understand them.
For me, where those statements go off the tracks is in how they relate to the spirit of free software development in general. The main point of free software development is that software is something that anyone can create, and that by allowing the free sharing of the ideas, concepts, and functions made visible in code, we all learn more than we would have if it was all a big secret.
Yes, there will always be leeches who take what they want from what's freely available and then refuse to share what they create from that, but they are the poorer for it, not the developers that they've taken it from.
I don't see a burning need to keep "those who don't want to share with the community from using [some random technique]", since it doesn't do harm to the original project, and underscores the fact that open-source development works well enough that proprietary companies sometimes find it easiest to steal to stay competitive.
All in all, I have to say that I don't love this idea. At a minimum, I like it a lot less than the idea of abolishing software patents. Maybe I misunderstand, maybe I'm wrong, and (a distant third) maybe I'm right about this...one way or another, I'm sure PJ will clear the air.
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