Paper 3: Software Patents
Due: Jun 29, 2012, but no late penalties until July 3 Comp 317/417,
Dordal
Choose one of the following.
1. Are software patents a special case?
There are actually two issues; you can focus on both or else either one alone:
- Are software patents a special case?
- Are software patents beneficial, on the whole, to the economy?
If the answer to the second question is "yes", then one might be inclined to support software patents even if they were
a different case from physical-machine patents. If the answer to the
second question is "no" or even "maybe not", however, then the first
question warrants careful consideration.
Paul Graham wrote
There's nothing special about physical [machines] that should make them patentable, and the software equivalent not.
Argue your position, and come to some sort of
conclusion. Your conclusion should suggest some broad position on the
usefulness of software patents themselves.
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?
Here are a few justifications that have been advanced for considering software patents to be fundamentally different:
- Software is often about abstraction, and abstract ideas
- Software has greater generality than physical machines
- Algorithms are fundamentally mathematical facts rather than inventions
- Many software "inventions" are straightforward
implementations of broad ideas
- Often the "creativity" in software is simply realizing that, yes, there is a market for the product
Others have argued that the only specialness of software patents is that the
patent office allegedly has difficulty conducting patent examinations
for software. Still others argue that it is the existence of open source that makes software patents unique.
In the I4I v Microsoft case, an obscure patent about a data structure
for holding XML tags became very expensive for Microsoft, once the data
structure in question was interpreted so broadly as to cover any method
of manipulating XML structure separately from data. Does this represent a fundamental problem with the use
of abstraction (ie in describing data structures) in computer science?
Or was this just a quirk of the judicial system?
The Supreme Court decided the Bilski
case in June 2010 and agreed that some abstract ideas are not patentable. Does this affect software patents?
Yet another way to address the two questions above is that, yes, Graham was right, but that software should be
subject to different patent rules. If this is what you feel, propose different rules and argue for them. If your main argument
is that software is indeed 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
- Whether software is "too abstract" to be patentable in general (Bilski's process was held to be too abstract)
- Many claimed software inventions are straightforward implementations using existing components
2. Protecting financial data
We've talked about several thefts of credit-card data and other
personal information (see Class 11 & 12 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. Protecting our interests is much more difficult, either before or after a leak.
What is the best way of handling the problem of protection of our data
that is held by third parties? Here are a few approaches mostly
focusing on credit-card data though a couple also apply to "identity
theft". When financial data is leaked, this can lead either to
fraudulent charges or to full-scale "identity theft".
- 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 class-action lawsuits against companies with lax standards; companies will not want to risk lawsuits
- credit-card companies and banks can bring civil lawsuits against merchants and processors with lax standards
- self-regulation by the industry (some other items on this list
amount to specific forms of that; here I just meant voluntary industry
standards)
- 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
- mandatory consumer notification after a leak
- better monitoring of credit bureaus to find out who is applying
for credit in our name, perhaps paid for by sites that have suffered
data leaks. One commercial monitoring company is lifelock.com.
- continued expansion of credit-card algorithms to detect "anomalous" spending patterns
- government requirements that security breaches be disclosed to affected individuals
- requiring banks to have more information about a person than just a social-security number before issuing a loan or credit card
- mandating a stronger password-security system for credit cards
than the current CVV2 three-digit number that is changed every three
years
Discuss briefly the issues involved in some 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 and debit card companies reimburse personal customers for any
unauthorized charges, although
it is usually up to you to point out
something is unauthorized. Usually they cover the full cost; they
legally may cover only amounts above $50. Note, however, that
unauthorized debit transactions for commercial accounts (eg small businesses) may be completely unrefundable.
(Credit and debit cards part company regarding how much time you have
to report a lost card; your debit-card liability may skyrocket after
two days. Also, 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, under many
circumstances they are in fact required to; these issues are entirely
different from charges that
were never authorized.)
Your paper (either topic) will be graded primarily on organization
(that is, how you lay out your sequence of paragraphs), focus (that is,
whether you stick to the topic), and the nature and completeness of
your arguments.
It is essential
that all material from other sources be enclosed in quotation marks (or
set off as a block quote), and preferably with a citation to the
original source as well.
Expected length: 3-5 pages (800+ words)