Slashdot Mirror

Challenge accepted.

http://www.researchoninnovation.org/WordPress/?p=9
http://archive.mises.org/7880/patents-and-innovation/
http://archive.mises.org/10217/yet-another-study-finds-patents-do-not-encourage-innovation/
http://keithsawyer.wordpress.com/2008/10/31/do-patents-increase-innovation/
I didn't really even cherry pick; I just did a Google search for "innovation in countries without patent laws" and a whole slew of studies came up.

It appears that many of the studies have shown that heavy patents don't necessarily increase innovation, but rather direct the types of innovations that are made within an industry (perhaps: innovate for a long term lock-in, not for shorter term or wide-spread improvements).

/shrug I think patents have their place, but I can't fathom a reason why a company would need more than a decade of locked-in profits after a product is released to market. I can maybe see the case for the very, very expensive and time consuming process of drug manufacturing, but in those types of special cases, shouldn't the patent be proportionate to the time invested, and not a broad "You just won the cancer game for the next 63 years!" certificate?

[Bessen and Meurer] analyzed data from 1976 to 1999, the most recent year with complete data. They found that starting in the late 1990s, publicly traded companies saw patent litigation costs outstrip patent profits. Specifically, they estimate that about $8.4 billion in global profits came directly from patents held by publicly traded United States companies in 1997, rising to about $9.3 billion in 1999, with two-thirds of the profits going to chemical and pharmaceutical companies. Domestic litigation costs alone, meanwhile, soared to $16 billion in 1999 from $8 billion in 1997.

Things have probably become worse since then. For instance, patent litigation is up: there were 2,318 patent-related suits in 1999, and 2,830 in fiscal 2006 (though that’s down from the peak year, 2004, when 3,075 were filed). Mr. Bessen said awards in patent cases also seemed to be up, though he was less confident in that data. Worse, he says, companies doing the most research and development are sued the most.

There is no need to blindly focus on software patents. They aren't special.

Yes they are (see the economic literature e.g. http://researchoninnovation.org/) and what we should not be doing is blindly assuming that patents are beneficial.

DarkKnightRadick is correct: there's nothing "fundamental" that can be "owned" (as in property) in all this. You can't patent abstract concepts. Unless the patent describes a very specific process that is both non-obvious to someone skilled in the art and is not already revealed in other prior art/pre-existing technologies then this is totally bogus.

That's rather a naïve view and not really correct at all - certainly not as far as the real-world patent system is concerned, and likely not even in theory. In practise the non-obviousness requirement is often indistinguishable to POSITAs from the novelty requirement (i.e. in an everyday, non-legal, non-pseudo-objective sense); broad and abstract patents abound (and always have done - they're just more visible and worse in software)*; and non-novel patents - even those which duplicate or overlap other patents - can be and are often granted and can still be effective against anyone unable to afford to fight them in court.

* http://researchoninnovation.org/dopatentswork/

It is bad news. You've just been brainwashed by the thousands of stories in the media about how patents are bad that bad news looks good to you.

Patents allow inventors to earn a living. How is making money by creating valuable things bad?

It is good news, you're the one who's been brainwashed. Though it uses copyrights not patents open source is a good example of people making a living without a monopoly. People and businesses make money by offering buyers something they are willing to pay for. And seeing as how this specific discussion is about software patents, economists say "Pro-softpatent analysts have yet to find benefit from software patents". More than one economic paper or study has concluded patent protection may reduce overall innovation and social welfare. For more scholarly papers check out Google scholar. Of course many of those papers have to be paid for to read, with Research on Innovation having more. As a practical example take Apple, although other companies make and sell portable music players and smart phones Apple still leads the markets with the iPod and iPhone. Even after another company has released product X Apple can come along, release it's own version, then dominate the market.

Falcon

Full disclosure, I'm typing this on my MacBook Pro however my music player is an old Sony Walkman CD player and my cell-phone's a Nokia. I love my Mac but have no interest in getting either an iPhone or an iPod. If I ever get a smart phone it may have Android, then again I don't plan getting one. I don't know if I'll ever get an mpg3 player either. I might when my Walkman dies but I'[m not sure what.

So far, you're talking conventional economics theory about what drives people to create. "Against Intellectual Monopoly" reviews conventional theory and compares it to history, finding that the history doesn't really match the theory very well, if at all. It also describes the creative climate in the past, with statistics to show the difference between a culture that places emphasis on copyrights England and Europe which for the most part, did not have music copyrights until after 1780. The following quote from the book gives a telling example of why copyrights can be a problem for the creative process:

"The evolution of copyright from an occasional grant of royal privilege to a formal and eventually widespread system of law should in principle have enhanced composers' income from publication. The evidence from our quantitative comparison of honoraria received by Beethoven, with no copyright law in his territory, and Robert Schumann, benefiting from nearly universal European copyright, provides at best questionable support for the hypothesis that copyright fundamentally changed composers' fortunes. From the qualitative evidence on Giuseppe Verdi, who was the first important composer to experience the new Italian copyright regime and devise strategies to derive maximum advantage, it is clear that copyright could make a substantial difference. In the case of Verdi, greater remuneration through full exploitation of the copyright system led perceptibly to a lessening of composing effort." Page 212, "Against Intellectual Monopoly".

This quote and the data behind make it clear that rent seeking behavior tended to substitute for creative activity and effort. The examples in this book and others that can be found on the Internet (the work of James Bessen is highly recommended reading), demonstrate pretty conclusively that IP tends to substitute for creative activity and effort in general. The general behavior is that people spend more time and effort engaged in rent seeking rather than creating, when presented with the reward of royalties. In the realm of software, one look at Microsoft should be enough to give anyone pause for thought about the value of copyrights vs. quality.

In the end, it really comes down to accepting your creative talents as gifts and having faith that you will be sufficiently compensated for your efforts.

The "it's all maths / it's not all maths" arguments are indeed bogus - but so are the "it's truly inventive, it deserves a patent" arguments. Credit should be given and easily can be without also entailing powerful monopoly exclusion rights; your ability to commercialise some invention is not dependent on its being patentable and is not something which can be guaranteed by patents anyway; furthermore, third party patents can and often do work in exactly the opposite direction!; the patent offices never have attempted to distinguish at examination time between the truly inventive and the run-of-the-mill and for obvious reasons cannot be expected to ever be able to do so (at least not reliably, fairly and at reasonable cost); the moralistic "it deserves a patent" sort of argument falls apart when independent (re-)invention is taken into account;...

...To cut a long story short, the only arguments that really stand up in the end are the economic arguments. The fundamental economic question is this: Does granting patents in some field or industry significantly promote progress, innovation and overall economic and social welfare? If not, that field or industry certainly shouldn't be burdened with the considerable weight of negative effects that are an inevitable consequence of patent eligibility. As Fritz Machlup wrote in his 1958 Economic Review of the Patent System:

If one does not know whether a system "as a whole" (in contrast to certain features of it) is good or bad, the safest "policy conclusion" is to "muddle through - either with it, if one has long lived with it, or without it, if one has lived without it. If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it. This last statement refers to a country such as the United States of America-not to a small country and not a predominantly nonindustrial country, where a different weight of argument might well suggest another conclusion.
      While the student of the economics of the patent system must, provisionally, disqualify himself on the question of the effects of the system as a whole on a large industrial economy, he need not disqualify himself as a judge of proposed changes in the existing system. While economic analysis does not yet provide a basis for choosing between "all or nothing," it does provide a sufficiently firm basis for decisions about "a little more or a little less" of various ingredients of the patent system. Factual data of various kinds may be needed even before some of these decisions can be made with confidence. But a team of well-trained economic researchers and analysts should be able to obtain enough information to reach competent conclusions on questions of patent reform.

Here is some of that research and analysis: http://researchoninnovation.org/

Economists have always worried about whether the patent system actually works as intended or not. For evidence that it probably does not work for e.g. software, start here: http://researchoninnovation.org/ Before reading the recent literature, however, I'd recommend reading Machlup's famous review: http://www.mises.org/etexts/patentsystem.pdf in which it is made clear that fairness is an outdated way of thinking about patents and a weak justification for them at best: the disclosure benefit is dubious, to say the least, and the patent privilege is something which needs to be justified as beneficial despite its potential for *unfairness* (and its various other negative effects).

It's a pain that popular compression algorithms are covered by patents

Quite.

http://www.ross.net/compression/

but I think it's quite fair to say that advances there are patentworthy, just like advances in analog techniques of bandwidth reduction for broadcast video.

And as any student of the patent system will tell you, the patent system never has been and (for various reasons) cannot be made to issue patents only for "patentworthy" inventions. Unless there is good reason and evidence to believe that making patents available in some field/industry "promotes progress...", the economically (and ethically) rational thing to do is to not make them available. See e.g. Machlup's review http://www.mises.org/etexts/patentsystem.pdf and http://researchoninnovation.org/

In principle you're right. What you describe is how the concept behind patents is supposed to work.

In reality, there's only pharmaceutics where the patent system works for the patent-owners remotely like your description. Everywhere else, patents have become a tool for mercantile suppression and corporate warfare; from which the economy as whole only suffers (with the exception of lawyers).

Read http://researchoninnovation.org/dopatentswork/ and http://www.dklevine.com/general/intellectual/againstnew.htm on how the patent system really works (as opposed to theory).

patents cover methods of implementation, and not all encompassing ideas

Not true.

Patent applications are drafted to be as broad as the prior art will allow. Patents claiming "all encompassing ideas" are usually harder to get than narrow ones and at greater risk of later invalidation, but - as Acacia and other trolls are well aware - they are more valuable: http://w2.eff.org/patent/ and software is particularly troubled by them: http://www.researchoninnovation.org/dopatentswork/dopat9.pdf

You're absolutely right. But this already has been done.

http://www.researchoninnovation.org/dopatentswork/

Unfortunately, those most directly affected by the patent system are also often the least knowledgeable about it and often the most infected by its peculiarly virulent myths and fallacies. Asking some of the right questions, as you have done, is a good start but the patent system - esp. w.r.t. software patents - has been a hot topic in economics and elsewhere for some time now and you might be interested in some of the more recent stuff than that found at the LPF site:

http://researchoninnovation.org/

http://www.si.umich.edu/~kahin/kahinpubs.html

Yes, this paper is mindblowing, and more people should know about it. But this paper is also theoretical, so it can be disputed by IP fundamentalists as having little to do with the real world.

But Research on Innovation has a lot of other interesting papers.

In particular I like the paper AN EMPIRICAL LOOK AT SOFTWARE PATENTS. This paper is an empirical investigation of the effect it had on innovation in the IT industry when software patents were legalized in the US.

From the abstract:

We find evidence that software patents substitute for R&D at the firm level; they are associated with lower R&D intensity.

Yes, this paper is mindblowing, and more people should know about it. But this paper is also theoretical, so it can be disputed by IP fundamentalists as having little to do with the real world.

But Research on Innovation has a lot of other interesting papers.

In particular I like the paper AN EMPIRICAL LOOK AT SOFTWARE PATENTS. This paper is an empirical investigation of the effect it had on innovation in the IT industry when software patents were legalized in the US.

From the abstract:

We find evidence that software patents substitute for R&D at the firm level; they are associated with lower R&D intensity.

Sequential Innovation, Patents, and Imitation

by James Bessen and Eric Maskin c 1999

Verbatim copying and distribution of this entire article for noncommercial use are permitted in any medium provided this notice is preserved.

Working Paper 11/99

Abstract: How could such industries as software, semiconductors, and computers have been so innovative despite historically weak patent protection? We argue that if innovation is both sequential and complementary -- as it certainly has been in those industries -- competition can increase firms' future profits thus offsetting short-term dissipation of rents. A simple model also shows that in such a dynamic industry, patent protection may reduce overall innovation and social welfare. The natural experiment that occurred when patent protection was extended to software in the 1980's provides a test of this model. Standard arguments would predict that R&D intensity and productivity should have increased among patenting firms. Consistent with our model, however, these increases did not occur. Other evidence supporting our model includes a distinctive pattern of cross-licensing in these industries and a positive relationship between rates of innovation and firm entry.

http://www.researchoninnovation.org/patent.pdf

(Warning: Uses mathematical equations)

The NIH has done alot of research and publishes much of it in the interest of common good. The NIH (and related organisations in other countries) are not at all the problem however.

Bear in mind also that a cure can be published in detail while also remaining patented: don't get patentability mixed up with copyright.

As a medical researcher, you mind find it interesting - perhaps disturbing - to read the following:

Stagnation in the Drug Development Process: Are Patents the Problem?
TRIPS and pharmaceutical patents: fact sheet
Patents, Pharmaceuticals and the Third World

There is much more out there on this problem. I suggest you look around.

Easy. There's no such thing as "intellectual property." And there's no such thing as a legitimate software patent.

Straight from the innovations in software page, we have: "As patentability has increased, there's good evidence that the number of software innovations has decreased. Bessen and Maskin also demonstrated a statistical correlation between the spread of patentability in the United States and a decline in innovation in software. In particular, between 1987 and 1994 , software patents issuance rose 195%, yet real company funded R&D fell by 21% in these (software) industries while rising by 25% in industries in general. This paper gives additional evidence that software patents are inversely related to innovation; it's hard to not notice that as patenting become more common (e.g., 1987 and later) that the number of major innovations slowed down and are almost always not patented anyway."

The link supplied is to this PDF about patents. It's worth your time to read about this research.

Scenario one: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone pops up with a patent and says I have to pay royalties.

Scenario two: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone else steals my idea for their own software and releases a competing product.

Both of these scenarios are clearly wrong, but no patent plan thus far has dealt with any way to prevent both cases. Overuse of software patents creates the first scenario, while lack of software patents creates the second.

Because of the time it takes to get a new piece of software on the market you will be about two years ahead of your competition.

Without software patents you cannot simply lean back and collect patent royalties for the next 20 years. To stay ahead of your competition you will be forced to keep on innovating.

So the lack of software patents actually promotes more innovation.

This has also been shown in imperical research (pdf warning).

In a representative democracy, the elected representatives of the people should represent the interests of their electorate. On a specialized issue such as IP policy, that would include conclusions from the results of independent research as well as listening to a representative selection of the people affected by a measure, not just to the lobbyists of a few large corporations and the industry associations that they effectively control.

what would qualify as "independent development?"

Besides, like I noted in my post, if your system is so complex or time-consuming that any reverse-engineering would take as much or nearly as much time and effort to implement as coming up with the idea from scratch, then maybe in your case you don't need the patent protection anyway!

You are shifting the burden of proof and rather distorting the facts: You may only ever have seen exceptionally weak arguments, but that is not because only exceptionally weak arguments have ever been deployed - quite the converse is true*. The problem so far has instead been that no argument with even a semblance of strength for introducing software patents has ever been produced. And however weak you think any argument against the expansion of patentable subject matter is, it automatically wins unless you have a strong argument in favour of that expansion. But the expansion has occurred anyway of course, and in the face of strong arguments and strong opposition from industry and academia. That many companies, academics and individuals had to make such arguments at all illustrates the appalling state of recent policy making in this area (if you can call it policy making). Any credible economist will tell you that patent scope expansion without prior empirical and sound theoretical justification is verboten. Too bad - the damage is done and in the US it seems the fight's effectively over now, but the rest of what I want to say is appropriately Eurocentric anyway.

*
http://researchoninnovation.org/online.htm
http://www.si.umich.edu/~kahin/mip.html
http://swpat.ffii.org/archive/mirror/impact/index. en.html
http://philsalin.com/patents.html
http://lpf.ai.mit.edu/Patents/knuth-to-pto.txt
http://www.spectrum.ieee.org/jul05/1557
http://www.dailytimes.com.pk/default.asp?page=stor y_16-8-2005_pg5_12
http://swpat.ffii.org/archive/quotes/index.en.html

"You have to be prepared to deal with issues like why expressing a particular piece of logic in C or Ada doesn't deserve patent protection, while expressing the same logic in Verilog or VHDL, which look identical to a non-programmer should deserve that protection."

That is definitely not an issue. One does not ask whether or not some invention deserves a patent, but whether or not it is patentable subject matter at all and your example is a poor one because if the claims of a patent are directed to the expressions of logic, then they are software patent claims.

"Likewise, why a device that fits the description in a patent claim should not be protected if the implementation happens to be (even in part) carried out with an embedded processor with embedded code, even though it's not at all apparent to the outside world that there's any software involved at all."

The distinction between hardware and software is not useful and is not at all relevant to the question of whether a patent claim is a software patent claim or not. One way to discover how the distinction between software patent and non-software patent is determined (and it is not always easy) is to read the way it is expressed by Judge Peter Prescott QC in his recent CFPH decision, in which he carefully and fully interprets the EPC Article 52 exclusions. Unfortunately, Prescott's interpretation seems to me to leave a lot of room for claiming things such as image enhancement techniques derived from purely mathematical considerations, but at least compression algorithms and data manipulation and data st

Investment in software is 7% lower then it would have been without software patents. See Bessen & Hunt, http://www.researchoninnovation.org/swpat.pdf (summary at http://www.researchoninnovation.org/softpat.pdf).

Investment in software is 7% lower then it would have been without software patents. See Bessen & Hunt, http://www.researchoninnovation.org/swpat.pdf (summary at http://www.researchoninnovation.org/softpat.pdf).

The problem is that the evolution of game development, like all software development, doesn't proceed in leaps -- big patentable breakthroughs, like a miracle drug. In industries progress consists of small improvements to the existing knowledge base, patents are demonstrably A Bad Thing -- not just bad for the poor little software developer guy (me), but for the state of that particular art. See MIT paper http://www.researchoninnovation.org/patent.pdf/

IANALOAK (of any kind), but the scenario you described is an abuse of the patent/judicial system, not the scenario it is designed to protect.

(Don't throw out the baby with the bathwater.)

Nevertheless, no one argues for "not throwing out the baby with the bathwater" and to introduce such a system, while at the same encouraging people to fight for preventing abuse of such a system. Even though a particular system could have some positive effects in an ideal world, that does not mean that abandoning it in the real (and not ideal) world is a bad decision.

In fact, patents (if done right) should be a benefit to any developer. They should stimulate people to work hard at developing new ideas, so when they share them, there can be some personal reward (or at least a payback to cover the investment of time and effort).

In summation, the problem isn't with the patent concept itself, but with its implementation-- benefitting the powerful to the expense of the individual.

It's not just implementation, there are lots of indications that the principle of the patent system is simply unsuited for a field like software. More here.

Recent empiricial research suggests patents are even less successful in software. This is because software is different. Or search for "while statement" here. To illustrate cumulative innovation complexity-wise, the 2.6.8 kernel has 300,000+ IF statements, a BMW sedan car has a complexity of "only" 15,000-18,000 pieces (Mr Blabst BMW press department), a typical drug consists of 10-100 atoms.

In other words, the position that there are fields of human activity that the patent system is not so well tailored for is well-defensible even without killing the entire patent system.

Sidenote: there have been a lot of quirks and surprises in the past with the Software Patent Directive, so get prepared to the thought that next week's Brussels/Berlin demos are still needed and useful politically (only one scenario of total fiasco has hopefully been avoided, there is not yet a renewed referral in Parliament nor B-iten in council).

So, tell me again why we should introduce this costly, bureaucratic and monopolistic process. Exactly how will it benifit the citizens of the EU? Will it give us new, innovative software? Will it give us more jobs (apart from all the patent lawyers, that is)?

Society has concluded that the net effect of patents on technology is positive, not just less negative. Why is it that you think the net effect on software is negative?

PS: you really should learn to troll in a much more subtle way, you give yourself away much too easily. And now you can post the obligatory "hurt" post, hoping to get me doubting after all. Thanks for playing, better luck next time.

Someone with sufficient understanding of economics has done the math and calculated the effect of patents in different scenarios:

Industries where innovation comes largely independent of each other, like medicine and

industries where inovation builds upon prior art.

Interestingly, it can be shown, that in the latter scenario (software!), patents harm not only the public, but even the paent-holder. A very interesting read (at least for the economics-geeks out there...). Here's the link.

Reading about the abuses of patents really makes my blood boil, but at the same time it is comforting to know that economists are starting to react against software patents.

The economic papers (and probably many others) " Sequential Innovation, Patents, and Imitation" and " An Empirical Look at Software Patents" articulate in economic terms why software patents don't work.

I think that most economists believe that monopolies are bad and competition is good. I think that the more the economic viewpoint like those mentioned in the papers above start to have stronger acceptance amongst economists, then these viewpoints will start to hit the main stream press such as the Sydney Morning Herald (as a main stream newspaper in Australia). Hopefully, by this point, these viewpoints would start to influence government policy.

Geeks got on to the problem of software patents early. But the "geeky" point of view is often overlooked by governments. Economists are much more respected in government and probably can articulate an argument against software patents that probably will not be be overlooked. I'm looking from the perspective in Australia, I don't know how politics works in other parts of the world. But I hope that common sense will prevail.

Reading about the abuses of patents really makes my blood boil, but at the same time it is comforting to know that economists are starting to react against software patents.

The economic papers (and probably many others) " Sequential Innovation, Patents, and Imitation" and " An Empirical Look at Software Patents" articulate in economic terms why software patents don't work.

I think that most economists believe that monopolies are bad and competition is good. I think that the more the economic viewpoint like those mentioned in the papers above start to have stronger acceptance amongst economists, then these viewpoints will start to hit the main stream press such as the Sydney Morning Herald (as a main stream newspaper in Australia). Hopefully, by this point, these viewpoints would start to influence government policy.

Geeks got on to the problem of software patents early. But the "geeky" point of view is often overlooked by governments. Economists are much more respected in government and probably can articulate an argument against software patents that probably will not be be overlooked. I'm looking from the perspective in Australia, I don't know how politics works in other parts of the world. But I hope that common sense will prevail.

You have some interesting ideas in there, but unfortunately you've also lumped in things like polls.

That in particular is an interesting idea to consider. The slice of the research pie for patent lawyers has grown. However, did Bessen and Hunt also check whether the size of the whole pie had grown, meaning the amount for research was bigger despite its share being smaller?

Would you grant that it's possible that patents have just grown the pie of money for software research, even after the money spent on maintaining the patents is subtracted out?

You have some interesting ideas in there, but unfortunately you've also lumped in things like polls.

That in particular is an interesting idea to consider. The slice of the research pie for patent lawyers has grown. However, did Bessen and Hunt also check whether the size of the whole pie had grown, meaning the amount for research was bigger despite its share being smaller?

Would you grant that it's possible that patents have just grown the pie of money for software research, even after the money spent on maintaining the patents is subtracted out?

Do I think we'd be better off, if anyone started patenting software algorithms since 1950? Damn right. We'd have had more people actually paying from research,

instead of just hordes of people copy-and-pasting the same code over and over again. Coying-and-pasting other peope's code into your own program is a copyright issue, and so programmers are already protected from this. Hardly any programmer does it anyway --- it's hardly worth trying as you have to work out exactly what bit of code does what. You might as well just write your own program with the same functionality. And that takes just as much time as the original. In software, first-mover advantage. along with copyright on the original code, are generally sufficient to allow someone to profit from a really novel idea.

My point is that the rationale used by the author of the parent post in support of the proposition that IP should be "rejected" as property could just as easilly be applied to other forms of property.

And my point was that he wasn't arguing for rejecting IP as a whole, just that software patents create a climate where someone who could normally set up a business on his own (with the only required investment being a computer), now potentially needs an enormous amount of money to either defend himself from software patents (at least $US1.5-2 million per case), or to obtain a portfolio of defensive patents (not free either, and not a guarantee for not being sued).

Something that impedes the free market like that, needs quite good hard data in favour of it for it to be defendable from a macro-economical point of view imho.

our rationale could also be applied to other types of IP, not just software, which come about in rapidly developing fields. The same "sky will fall" arguments were made in the past (some over 100 years ago) and they proved to be dead wrong or wildly exaggerated.

I'm not saying the sky will fall or that software development will come to a halt. Microsoft, IBM and friends will happily go on. It's just that you create a climate where the big players can more or less control who can join the club and who can't, buying out or suing to bankruptcy the ones that don't play according to their rules. A bit like in the telecom sector. Where are all the small time businesses there that don't have to base their business on patenting stuff to license it to the big players?

Also, I'm not claiming patents only have a mainly negative effect on software, it wouldn't surprise me if the case is similar in certain other fields. However, I have not studied them there, so I can't make any statements about that.

Software patents have only been arround since 1998 (date of the State Street decision) so I don't really give much credence to your conclusion that they "do not result in more prosperity or innovation." There just hasn't been enough time to develop evidence in support of such a proposition.

Software patents have been around since quite a bit earlier, even in Europe (the base patent on mp3 compression dates from 1985 or 1986). As far as enforcement in courts is concerned, the slippery slope in the US started already with Diamond vs. Diehr in 1981. And it's not my conclusion, it's the conclusion of those studies (see below for a few).

I could respond by saying that the US leads the world, by far, in the software industry and is the only country that allows software patents. But that would be an oversimplification of the complex issues involved.

Absolutely, since the US dominance started well before there was any talk of software patents. However, it's not the only one that allows them, at least Japan has them as well.

For every one of the "studies" you refer to, I can probably point to another "study" that says the opposite.

Here are some of "my" "studies". I'd love to see yours.

• Study by the Federal Trade Commission from October 2003 (extracts with the software patent related stuff from that report). Conclusions: many indications that software patents hamper innovation because of, among others, patent thickets.
• Empirical study by Bessen&Hunt on the effects of software patents in the US. Conclusion: software patents have resulted in a transfer of R&D money to patent departments and has not resulted in increased R&D. Because of the incremental nature of software development, patents hinder instead of encourage innovation.

• Study by the Federal Trade Commission from October 2003 (extracts with the software patent related stuff from that report). Conclusions: many indications that software patents hamper innovation because of, among others, patent thickets.
• Empirical study by Bessen&Hunt on the effects of software patents in the US. Conclusion: software patents have resulted in a transfer of R&D money to patent departments and has not resulted in increased R&D. Because of the incremental nature of software development, patents hinder instead of encourage innovation.
• Study ordered by the European Commission in preparation of the European software patents directive. It did not suit their goals however, so they avoid referring to it. Quote: "Unless this fundamental lack of knowledge is addressed in a more structured manner, any proposal to optimise the patent system in respect of software-related inventions is based on nothing more than wild guesses or wishful thinking."

First you accuse me of mischaracterizing the FFII.

That can happen with a comment title like the one above...

If you read carefully (I believe the first parenthesis in my response) I clearly wrote that this was the view of the one cambridge ffii presenter.

Who was that? James Heald? I'd be extremely surprised if he'd say something like that (though not impossible I guess, we all make mistakes).

Next, you attempt to equate a sound bite's use of the word "trivial" with "nonobvious", which sounds to me like a bit spin-doctoring by you.

How else is the patent system supposed to stop trivial patents, other then through careful application of the novelty and non-obvious conditions? Without software patents, there's still the "technical character" test in Europe, but that one has been completely eroded by the EPO so it doesn't mean squat anymore... Virtually everything has become "technology" in their eyes. See the page I referred to in my previous post.

But, even if you were right, the fact is that airplanes crash occasionally too, and yet it's still better than walking.

I argue that patent law is so unfit for advances in abstract reasoning, logic and mathematics that you can't but end up with tons of trivial and/or very broad patents if you allow software patents. The end result is that the resulting monopolies hamper innovation much more than they encourage it.

Some studies to back up my claims:

• Study by the Federal Trade Commission from October 2003 (extracts with the software patent related stuff from that report). Conclusions: many indications that software patents hamper innovation because of, among others, patent thickets.
• Empirical study by Bessen&Hunt on the effects of software patents in the US. Conclusion: software patents have resulted in a transfer of R&D money to patent departments and has not resulted in increased R&D. Because of the incremental nature of software development, patents hinder instead of encourage innovation.
• Study ordered by the European Commission in preparation of the European software patents directive. It did not suit their goals however, so they avoid referring to it. Quote: "Unless this fundamental lack of knowledge is addressed in a more structured manner, any proposal to optimise the patent system in respect of software-related inventions is based on nothing more than wild guesses or wishful thinking."

Many more are linked on the page I gave you earlier.

Your comment about no software patents being the default argument position is dubious at best as the counter argument (which in fact you allude to using the term 'intertia') could be made quite easily - patents have worked quite well for many years.

No software patents is the default position in Europe. The European Patent Convention excludes them, and so did the European Patent Office until it started with its creative interpretation claiming that "a computer program executed by a computer" is not the same as "a computer program as such". When you change the law, and on top of that adapt it to accomodate the behaviour of the people that started breaking it, then you have to provide quite convincing arguments (preferably in the form of macro-economical studies) that this is a good thing.

Yes, i agree the system has been flawed and needs reform, but the fundamental idea is sound. Why should software be any different? To claim that you have absolutely the default position is nonsense; it's

No, he's saying exactly what empirical studies show. The only person that hasn't backed up his claims until now in this whole discussion is you. That's probably because there are no empirical studies that show that software patents have mainly positive effects.

According to this paper from the website of The Newcomen Society of the United States, Thomas Newcomen, the inventor of the first practical steam engine, was forced to go into partnership with a London syndicate that had bought a royal patent originally issued to the inventor Thomas Savery on engines powered by fire. The patent was for Savery's own "suction engine", which was never practical, but it was so broadly worded that Newcomen's own far superior design was also covered. The syndicate gave Newcomen little credit for his engines.

James Watt, the inventor of the double-acting steam engine (which was the first really efficient steam engine and allowed the Industrial Revolution to take off), and his business partner Matthew Boulton obtained many patents on steam engine designs. These patents were for their own, workable inventions, so they were certainly on stronger ethical ground than the owners of the Savery patent, but by ruthlessly enforcing their patents against any inventors who tried to improve the steam engine further, they held back progress in the field for decades. In particular, the development of portable high-pressure steam engines, which would allow vehicles to be powered by steam, was delayed until Watt's patents expired. Watt opposed such engines, believing that they were unsafe. (See this article from the Technological Innovation and Intellectual Property newsletter, published by Research on Innovation.)

I believe too broad IP laws stifle innovation in software because it limits competiton and in a market where there are no competitors, there no more incentivie to innovate.

Too broad IP laws cause too many patents, cause low patent standards, can be summarized as patent inflation. And this is a danger to SMEs because they can't afford the patent litigation lawsuits, so they have to pay or just get bought for a cheap price.

About your argument:

The IT industry in the US wasn't covered by copyright legislation until the late 80s(I've heard) and patent legislation(or: clarification) for software came not before 1994 which effects did not show seriously until the dot com bust.

A study from Federal Reserve Bank of Philadeplia also does not show such evidence, rather the other way around, in the conclusions, 2nd paragraph on page 24, it says:

Advocates also argue that software patents provide stronger incentives for R&D investment. But our results show that greater use of software patents is associated with lower R&D intensity. Although software patents do not necessarily cause a decline in R&D intensity, we can reject the argument that software patents have on average increased R&D incentives./

So why give patents? The assumption is that what society gets in return for this monopoly (the working of this patented invention, and the fact that the innovator gets a reward for his work will encourage more innovation) weighs up against this negative effect.

The big problem with software patents is that these positive effects do not weigh up against the negative effects. See this MIT study on the effect of software patents in the US and the open letter from a number of distinguished economists to the European Parliament. It's simply a matter of striking the right balance between the positive and negative effects, and in software the negative effects far ouweugh the good ones.

why, pray tell, should such inventions not be worthy of european patent protection?

This has nothing to do with worthiness. The European patent system wasn't designed to make sure innovators are rewarded for their trouble, but to spur the progress of innovation as much as possible. As scientific studies and economists (Google cache, site seems to be down) show, patents do not help innovation in software at all, they actually hamper it.

for a small company, patents are often the ONLY tools they have to keep from being steamrolled by their larger rivals.

This has to be one of the most prevailing misconceptions that pro-swpat people spread. First of all, keep in mind we are currently in the situation where Europe does not have enforceable software patents and has lots of small software development companies, while the US has software patents and mainly huge monoliths. Also, EU software (or other) companies can get software patents in the US and enforce them there at this time without ay problem. Now:

• Situation A, no software patents in Europe (as it is now): Small Company has a great idea, creates a product, sells it. Big Company sees idea, copies it, sells it. Depending on the quality and marketing of Big Company's product and the ability of Small Company to keep innovating and possibly finding a niche market that can sustain its operatrion, Small Company may or may not go broke. No matter what, Small Company can get a software patent in the US and use that to extract money from Big Company in the US.
• Sitation B, software patents in Europe (as proposed): Small Company has a great idea, patents it, creates a product, sells it. Big Company sees idea, copies it, sells it. Small Company sues Big Company for patent infringement. Big Company looks at Small company's product, and sees it infringes on 10 software patents of theirs. The companies settle in a cross-licensing deal, with Small Company possibly paying also an undisclosed amount for usage of the patents from Big Company.

Note that Situation B is not something I just made up, that's how IBM currently behaves in the US. How does introducing software patents in Europe help small European companies defend themselves against big foreign companies, especially since those foreign companies own the majority of the already granted software patents? (75% of the 30,000 already granted ones are in hands of US and Japanese companies)

The only type of small companies that can get easily rich via software patents, are those that do not develop any products. They just patent an idea and then go to big (and possibly also small) companies asking for money, knowing that they can't infringe on any of the other party's patents. This may be an innovative way of making money, but that's not the kind of innovation that the patent system in Europe is supposed to promote.

framing the debate "against" software patents purely on the grounds that the EPO may, in error, issue invalid patents does not, in my opinion, reflect an impressive level of education on the part of EU lobbyists. it rather reflects an astonishing ignornace about today's ecomomic realitities.

Maybe you've seen only that side of the debate, but there are many other sides. When I speak to MEPs, the silly trivial examples of patents granted by the EPO are handy to have, but that's not what the discussion is about. It's mostly about how introducing software patents would not help the European economy at all, how software patents deter innovation and completely undermine the copyright protection that software has (you may think that copyr

Here is an example: although the GIMP web site is hosted in the US, several of the most active developers are living and working in Europe. So after some discussion with the other developers, I decided to close the home page of www.gimp.org. Even if you live and work in the U.S., you could be affected because some software developed by many contributors from all around the world could cease to exist because of software patents affecting these developers.

Allowing patents on software and business methods in the U.S. was a bad idea. Several studies have shown that software patents in the U.S. have had a negative impact on the industry. But so far, the damage has been limited because these patents are not accepted worldwide. So in many cases, a company that was more interested in litigation than real innovation was not able to sue the developers who (unknowingly) infringed on its patents because some or all of them were not in the U.S. But this could be different if these patents were valid worldwide (WIPO). The patent holders would have a bigger chance to hit the small companies and small developers, especially those working on Open Source or Free Software (because they cannot buy a license or pay royalties for all potential users).

This protest against the changes in the European law would also be a good way to promote a necessary reform of the U.S. patent system. A growing number of economists in the U.S. are raising their voice against the patentability of software. A clear sign coming from Europe could also help the U.S. industry in the long run.

Some people hide in their shell when their neighbors are threatened. Some people try to help them because they know that they could be affected directly or indirectly. The choice is yours.

Suppose you labor extremely hard to create something, it took so much of your time, might have cost you a marriage, every single penny in your account, and someone comes and swipes it from under your feet what would you do?

Getting a bit emotional, are we? Try to stay with the facts instead of conjuring up heartbreak stories. (Alternatively pursue a career as Hollywood script writer)

Having some country throw patent ideas out is rather lame, and in the long run is only going to hurt those who innovate more than anyone else.

Uh-huh. That't why researchers from MIT and the Federal Reserve Bank in an empirical study concludes that "greater use of software patents is associated with lower R&D intensity. [...] we can reject the argument that software patents have on average increased R&D incentives." Now how does that happen if limiting patentability "hurts innovators more than anyone else"?

You think it's simple to take a human process and automate it?

The innovation happened because the inventor was promised, by the patent system, a monopoly on the innovation. Without that promise, the innovation wouldn't have happened.

Furthermore, intellectual property rights aren't intended to do anything. They have no goal. We offer legal protection to intellectual property rights because it's the right thing to do. Period.

Indeed, that's why you have to make sure your wording can be interpreted as broad as possible.

How many patents have you written?

Seriously; I'm asking. Because, you see, you don't do this.

I guess you'll retard^H^H^Hort (look, it's infectious!) by throwing another bunch of petty insults in my general direction, so I'll leave it at this. If you really want to document yourself better, then stop worrying about job security for a moment and read a bit about it. Then maybe the next time you can reply with arguments instead of with insults.

I have no doubt about your knowledge of the patent system (and probably IP in general), but you sound like a mindless drone just repeating his mantra's over and over again, not listening to anyone else because he's convinced he's right and anyone who disagrees with him cannot possibly know what he's talking about, or is a "self-hating apologist" or some such (I'm honestly surprised you haven't called me a communist yet). I really do hope you have some happy moments from time to time as well.

That "study" has been widely discredited.

You have to look at THE RESULTS of research, not the dollars spent on it. We've seen more technological innovation in the fields of software and related disciplines in the last ten years than in all the rest of the history of computing combined.

PS: sorry for answering your trolling.