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September 02, 2007

Senior IBM IP Lawyer on Need to Reform Copyright

David Kappos, the Chief IP Lawyer for IBM, spoke quite plainly in this recent interview with Scoble that patents in the IT sphere (as opposed to patents in the life sciences, pharma, etc.) are too easy to obtain. Patents in the IT world should really be truly innovative ideas and the issue is that software is usually an incremental endeavor and the current system needs to be changed.

  A copyright will protect you from PIRATES 
  Originally uploaded by Ioan Sameli.

Also, finding prior art in the software world is much more difficult that in other industries because there's no lexicon or common language for its architecture and structure; the software industry has completely changed from sub-routines to macros to objects to java beans and now to web-enabled components.

He advocates that the copyright and the patent system catch up with the times, meaning that patent claims should be posted online so that the corrective and collective-intelligence of the web will automatically solve the prior art challenge.

Lastly, David advocates that innovation is the new completive advantage for the 21st century. With the continual shrinking of the distance between the idea and the product, it means that the real economic value drives towards the ideas. And how can you reasonably extract value from those ideas much sooner and more efficiently. That doesn’t mean devaluing IP laws (they need revision but not denigration) but accurately distinguishing between the valuable less valuable kinds of innovation so that everyone profits.

I agreed with everything up until the end: can a refined copyright and patent regime effectively distinguish between more and less valuable kinds of innovation and apply a variable or sliding scale of protection?

That’s the only part I’m having a hard time envisioning because it seems like a slippery slope for IP champions to accept, that some innovations are less valuable than others. If you accept that premise, then you could be calling into question whether there is indeed a baseline standard for protection (e.g. the current 75 years plus life of the creator). By not accepting a variable IP protection scheme, you guarantee that your current and past holdings won’t be called into question.

Regardless, it’s refreshing to hear a corporate attorney speak candidly about the need to reform the current copyright and patent structures, admitting that many software patents are too easily granted, and that the prior art could be completely overhauled by harnessing the collective intelligence of the web. Now the question is how to drive urgency in reforming these things at the legislative level in Capital Hill.

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