Paper 3: Patents or Protection

Paper 3: Patents/Crime

Due: May 7, 2010 Comp 317/417, Dordal

Choose one of the following two topics:

1. Are software patents a special case?

Paul Graham wrote

There's nothing special about physical [machines] that should make them patentable, and the software equivalent not.

Argue for or against this position, and come to some sort of conclusion.

The purpose of patents is to encourage innovation and investment in innovation, for social progress. Does this principle apply to software as well as machinery and pharmaceuticals? Are software patents, on the whole, of benefit to society? Do they foster innovation, leading to more software ideas for everyone? For the purposes of patent law, should software be included?

Or is it true that software is fundamentally different? Perhaps because of its abstraction, or greater generality, or its mathematical nature, is software a special case? Or is it a special case simply because the patent system allegedly does not work well for software? Or even because of open source?

The Supreme Court is currently hearing the Bilski case and will decide if patentability requires that the invention be a "machine or transformation". Is this a good standard? Does it in fact contradict Graham's position?

There's a potential grey area in concluding that software should be subject to different patent rules, but still should basically be patentable. Handle this as gracefully as you can. If your main argument is that software is a special case, you may either make the case that it is so different that patents should not apply, or make the weaker argument that special patent rules should apply. If you are arguing that software is not a special case, you do not necessarily have to argue that all the rules should be the same.

Discuss both sides, and come to a conclusion. Your conclusion should either support one side or the other (perhaps with qualifications), or else it should outline some sort of "compromise" position.

If you are arguing against patents generally, please make that clear (in that case, you are probably not arguing that software is different, though you might argue that the case against software patents is stronger). If you argue against all patents, you should be sure you understand your argument's implications for, say, the pharmaceuticals industry.

Keep in mind the following points (though you don't have to address them all):

Incentives to innovation and development
Litigation costs as a negative social side-effect
Inventor's rights
Public's rights to shared ideas
Conflicts between patented software and open source

2. Protecting our privacy

We've talked about several thefts of credit-card data and other personal information (see Week 13 notes for particulars). If someone has our physical possessions, we likely know about it, because we're without. But information can move around and we have no idea where it is or who might have a copy.

How is the problem of protecting our data best handled? Here are a few approaches focusing on credit-card data:

consumers will choose companies with higher data-protection standards, and less-careful companies will lose business. (This is the classic free-market argument).
consumers can bring civil lawsuits against companies with lax standards; companies will not want to risk lawsuits
self-regulation by the industry
merchant regulation by the credit-card companies (who have the strongest incentive to see to it that credit-card data is seen as safe; this is also a free-market argument).
governmental regulation of data security
government requirements that security breaches be disclosed to affected individuals

Discuss briefly the issues involved in each of these approaches to ensuring data security, including advantages and disadvantages. Can you think of any further examples, or any combinations that seem likely to be especially effective? Which are likely to be less effective?

Then pick one overall approach (or combination) and explain why you think it is best. Acknowledge any remaining deficiencies and problems.

Credit-card companies reimburse you for the full cost of any unauthorized charges, although it's usually up to you to point out something is unauthorized. (Credit-card issuers usually reimburse you for charges that have led to disputes with the retailer, such as merchandise not as described or not as expected, but they are not required to; these issues are entirely different from charges that were never authorized.)