NAFTA mandates software patents - opposing viewpoints welcome

[David Farber <farber () central cis upenn edu>]

From: lpf () uunet uu net (The League for Programming Freedom)
Sender: friedman () frob com


                   NAFTA and Software Patents
              by the League for Programming Freedom


If you believe software patents are harmful to software
development--or that the patent system for software has problems and
needs to be changed--or if you are *not yet sure*--then you need to be
concerned about NAFTA now.


Opposition to software patents seems to be the majority view in our
field.  Two ACM surveys at well-attended conferences (SIGCHI and
SIGGRAPH) showed a large majority of attendees entirely opposed to
software patents.  Most of the software companies applying for patents
say their actions are for defensive purposes, because they fear being
attacked with patents.


Among those not prepared to advocate a system of no patents in
software--the system the US had until a decade ago--many agree that
some change needs to be made.  Even the Patent Office has recognized
there is a problem, and has scheduled hearings for 1994.  But before
the hearings start, NAFTA may make them futile.  NAFTA probably
directly or indirectly prohibits all the proposed approaches for
addressing the problem.


Those of us entirely opposed to software patents would like to
eliminate them.  There are two ways of doing this.  One is to exempt
software from the patent system.  NAFTA clearly bars such a change, by
requiring that patents apply to products of any kind.


Another way is not to issue patents that cover computational steps
alone.  (This approach would not do anything about the thousands of
existing software patents.)  NAFTA does not directly address this sort
of rule, but the "all fields of technology" requirement may rule out
this approach.  (There is no way to find out for certain now; what we
can predict is that IBM will argue that it is ruled out.)


On the other hand, if we do not abolish software patents entirely, we
could reduce their harmful impact by changing other aspects of the
software patent system.


For example, some have proposed that patents on software should last
just a few years, since a program a few years old is obsolete for most
commercial purposes.  But NAFTA requires patents to last at least
seventeen years.


An automatic mandatory licensing system could eliminate most of the
problems that patents cause.  However, NAFTA forbids any sort of
automatic mandatory licensing.


The conclusion: if you believe that software patents cause problems
and that a change in the patent system *might* be necessary for
software, then join us now in calling for the rejection of NAFTA as it
stands, so that this part can be changed.


What you should do is write or phone your senators and representative.
A brief letter in your own words is the most effective way to
communicate your views to them.  The following addresses work for all
federal legislators:


Honorable ...
US Senate
Washington DC 20510


Honorable ...
US House of Representatives
Washington DC 20515


It is also useful to send a copy to Representative Gephardt (one of
the leading opponents of NAFTA as it stands) as well as your own
elected officials.  If you write your letter by computer, it would be
helpful to send a copy by email to lpf () uunet uu net.  We could show
these copies on other occasions such as when the Patent Office
reconsiders the issue.


A second proposed treaty, GATT (General Agreement on Tariffs and
Trade), has even stronger requirements on patents.  So it would be
useful to mention in your letter that you are concerned about GATT as
well.