For our project, Mike M and I decided to write a paper about source code disclosure in software patents. Specifically, we wanted to explore whether or not the law as it stood required source code disclosure, and, if not, whether or not it should do so. Our paper attacks the issue from many angles, and includes a look at both the normative and legal issues surround the question, as well as an in-depth analysis of one particular software patent in light of this topic. You can read our paper, which is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License, here.

In the course of our research, there were a few court cases which seemed particularly important to our topic, and none of them had Wikipedia articles. Being good citizens of the internet, we figured we’d go ahead and write articles on them. You can find our three articles here, here, and here. We both really enjoyed this class, and wish everyone else a great summer!

Our group wanted to figure out the state of Open Access (OA) at Yale, and what it would take to improve it.  Our project basically consisted of three phases:

1. Research to figure out what the norm is at other universities and with what, exactly, Yale should be compared.
2. Research among Yale faculty; we spoke with seventeen different professors and got their opinions about OA, and found out their concerns and whether they would support a university-wide OA mandate in the style of Harvard and MIT’s recent policies.
3. Compilation and presentation, including a draft of an OA proposal.

We read about OA, finding some really excellent resources (SPARC, Peter Suber, OASIS) in the process.  Then we talked to seventeen professors (none of the administrators we tried to talk to were available, unfortunately).  We listened to some of their concerns about OA (mostly arising from misconceptions about the peer-review process for OA journals), heard their opinions, found out what the general perception is.  To summarize: we found that most of them had some sort of idea what OA was about.  Several were enthusiastic, most were willing to give it a try, and only a few were skeptical.  This is intended to go beyond a simple class project: we’d like to extend it to an effort to get an actual organized OA campaign going here.   That shouldn’t be too hard; professors didn’t mind the idea, and there are enough people high up willing to listen (and enough people down low willing to talk) that we could get something really moving.

Our research and our results are available at http://openaccess.its.yale.edu.  Check it out!

-James, Christian, Adi, Evin, and Ben

EDIT: Okay, the link works now.  It doesn’t work the way it’s supposed to, and I blame Apache for that.  I’ll redo the server setup and fix it before converting this from “class project” to actual “project”.
-Ben

For our final project, my group (which consists of myself, Tyce, Danny, and David) decided to investigate the different structures of reputation economies online, and their social and legal implications. You can check out our website here:

http://www.wix.com/dls6128/IP-in-the-Digital-Age

Our group decided to probe into intellectual property issues outside the United States. While there are myriad issues that are both relevant and interesting, we decided to focus on pharmaceutical patents and cultural works. The goal of our project was to synthesize what we have learned and supplemented with additional research over the semester in the form of a debate.  Our arguments were put together from case studies and class readings/discussion. The goal was to present both sides of the argument while coming to a middle ground at the end. This came in the form of proposed changes to the current legal system that would be fair to both sides. Our proposed changes are what we believed would create a more balanced patent/copyright system while also being feasible.

Check out our website at http://web.me.com/ipdigitalage/Project/ . Watch the videos, read the transcripts and add your voice to this vibrant debate by commenting right here on the class blog.

The viewpoints expressed do not necessarily represent our personal views on the matter.  The purpose of this project is to present different views on generic drugs and cultural works for the sake of dialogue and debate.

Webcomics, monetization and incentives from Carter Schonwald on Vimeo.

This is my final presentation on webcomics. The first half of the presentation is a recap of what I discussed in class, and the latter half is various qualitative considerations I use to argue that the current setup for how webcomics make revenue is implicitly dependent on a permissive approach to IP. Theres a lot more interesting work on this topic, and I think I’ll do thusly over the summer, see the end of my presentation for a few ideas for what to do next.

[note: the last video segment has bad quality for resasons that I'm not able to determine or fix]

A low-quality version of the documentary can be found here (long load time).

Our documentary sought to explore both the contributions Yale has made to various open source projects as well as how Yale employs the results of open- and community-sourced projects. We did so primarily by looking at CAS (Central Authentication Service), uPortal, Sakai, and Horde, all projects which have been partially developed or used by the Yale community.

With four interviews (three video and one audio), we explored open source’s impact at Yale, talking to Andy Newman (outgoing Director of Yale University ITS Technology and Planning), Paul Hudak (a principal developer of the community-created language Haskell), Shawn Bayern (a principal developer of CAS and professor of law at Duke), and Susan Bramhall (a Senior Research Programmer for Technology and Planning and a board member of JA-SIG, a community-source educational software organization).

This project was incredibly timely, as the Technology and Planning Department, the arm of ITS responsible for Yale’s open source development and contributions, was very recently disbanded as part of recession streamlining, and so this documentary examines the projected future impacts of Yale withdrawing somewhat from the open source community.

Enjoy the documentary, thanks for a great class, and have a good summer!

Robert Baskin, Patrick Dewechter, Matthew Du Pont, Lauren Henry

Both Noveck and the “Committee on Intellectual Property Rights in the Knowledge-Based Economy” indicate the USPTO as one of the key things to be improved as part of any reform of the patent system. If one wants to become a patent examiner one can go to USAJOBS and type in “patent examiner” to view the available openings. There one will probably end up at job announcement LD220981 for a Computer or Electrical Engineer at a rate of pay between  $41,350.00 and $77,722.00. As with many government jobs, this rate of pay for a regsitered professional engineer seems to be substantially lower than that in the private sector. Indeed pursuing a career as a patent examiner in the USPTO it appears one can reach a maximum paygrade of GS-13 which works out to around $113007 for the top grade. Given this it seems unlikely that the USPTO will attract many of the so called best engineers to review the patents that are submitted. Given that the US has limtied quantities of engineers to draw upon, we might not want the best going to the patent office to review patents rather than researching or creating new devices, but it needs to be the case that the examiners are provided the resources and the time to stay abreast of the developments in the field they cover.  A similar disparity in pay exists for attorneys in government service and in the private sector.

In the past (and possibly the present) there has existed the possibility that an attorney might be ordered to serve as the defense counsel for indigents. Taking this, and jury duty, as guides one might propose that in the interests of promoting the progress of science and technology that it be the duty of professional engineers to review patents as an adjunct to the USPTO. Engineers could be selected by lot on some sort of basis to review a patent in their field. Naturally there could be some minor problems with this related to engineers objecting to this being a requirement of being registered as an engineer. More serious problems would arise from having to take measures to prevent conflicts of interest or the leaking of secrets prior to publication.

Such a system with the inclusion of the peer to patent system would decentralize the process of approving patents so that those actually working or at least expert in a field would be analyzing related patents. Furthermore it would solve the problem of finding and retaining appropriately qualified patent examiners because anyone with the appropriate expertise might be chosen as an examiner for a particular patent. It seems likely that there is some expertise that is related to approving patents separate from that of knowledge in the field, so it would most likely be necessary to assign the chosen field experts to correspond with an offical at the USPTO who would have the appropriate knowledge regarding patent policy and law.

A more detailed study would need to be undertaken in order to examine the feasability of this rather vague proposal. The most obvious issues are as follows. From what groups would the potential patent examiners be chosen? How would impartiality be enforced? How would the chosen examiners be compensated? In what capacity would the potential patent examiners be chosen, simple assistance or making decisions? Would appointed examiners be less diligent or skilled? How would this system affect the quality of patents issued? Would this system cause substantial disruption of industry given the number of patent applications in a single year? Would simply increasing the number of patent examiners in the current USPTO be a better solution? Would industry have a disincentive to apply for patents as applying for more patents could mean less work from their employees (as there would be an increased probability of some employee being chosen as an examiner)?

There are almost as many ideas for reforming the patent system as there are patents. What most have in common, however, is their acceptance of the standard patent paradigm: monopoly as a reward for innovation. This is probably no coincidence, since the Copyright Clause of the Constitution apparently authorizes Congress to grant only limited monopolies and not more exotic compensation. Ignoring constitutional concerns, however, we can try to imagine how a patent system might function without monopolies.

Read the rest of this entry »

In “Peer to Patent” Noveck suggests that patent examiners often have neither the time nor the resources required to conduct a thorough evaluation of a patent’s novelty or investigation into potentially applicable “prior art.” As a result, she claims that too many patents are granted upon an insufficient basis (termed “low quality” patents), thus impeding progress and causing needless litigation when companies are accused of violating the patent and must demonstrate that the patent should not have been granted.  Her proposed solution is to adopt the “Wikipedia approach” so that anyone can contribute ideas, including the presentation of prior art, novelty and utility.  She suggests that the advance in information technology sharing makes public participation in the patent review process desirable and efficient.

One obvious problem, which Noveck begins to anticipate but whose importance she subsequently minimizes, is that opening the patent process to public review would likely result in teams of scientists from opposing companies each attempting artfully to trash their competitors’ patents.  For example, a patent examiner may be presented with highly deceptive arguments intended to persuade him that a competitor’s patent has a basis in prior art when in fact it does not.  She argues that “if people produce information that is useful to the examiner, their personal agendas are irrelevant” (156).  What she does not fully acknowledge is that not all “information” is created equal.  In particular, the language used to convey a particular set of “facts” may well be biased or intentionally deceptive, further obfuscating the matter rather than clarifying it.  In such cases, it may well be that the patent examiner would need more rather than less time to evaluate the patent, and he may not be the most adept person at making such an evaluation in the first place.

Noveck calls this potential flaw “unproblematic” by simply building into her model a requirement that contributors sign an affidavit affirming that they have no conflict of interest.  This idea seems much more effective in theory than in practice.  The people most eager to make contributions will be exactly the people whose stakes in the outcome are large.  Often with sizeable resources at their disposal, we can be confident that they will find creative ways of circumventing this requirement, by bribery, deception, or otherwise.

A system is only as good as its capacity to enforce its requirements.  If the contributors offer their “opinions” it would be extremely difficult to distinguish a good faith but differing point of view from profit based advocacy.  Likewise, prosecutions of contributors perceived to be biased (rightly or wrongly) despite their affidavits would drive from making any comment those who could not rely upon well-financed legal teams to come to their defense.

Would there not be a substantial danger that the battle of well-financed parties in interest is merely shifted from the Courtroom after the patent is granted to the examiner’s office before the grant?  If the examiner is now overworked, will not the fog of patent war resulting from too much information likewise gum up the process, and perhaps much more?

If we are going to require affidavits of no conflict of interest, set up elaborate structures and weed out processes to eliminate those who try to pervert the process for financial gain (i.e. have a competing patent denied, do harm to a competitor’s company, etc.) why is it not much more efficient just to hire more competent examiners and to expand the time they have to examine the patent and the resources which they have available?  In the end, it seems that trying to correct the flaws of the current system within its existing structure may be a much easier task.