Making the Case Against Software Patents?

heretic108 asks: "I'm an open-source developer in a small western nation, which is slowly starting to take interest in Open Source, but whose (still MS-dominated) government is currently considering adopting a software patents regime similar to USA. This nation boasts a smart and feisty IT community, who have been terribly under-represented in government. I have a meeting in a week with a prominent member of the legislature (who has IT portfolio interests), during which I will have the opportunity to put the case against software patents. I'm asking for help in assembling information for use in the anti-patents case. Thank you dearly for any and all help you are able to provide here."

"I'm looking for references that cover the following subjects:

• Triviality of some patents
• Patents as anti-competitive instrument
• Patents' discriminatory nature - difficulty faced by smaller developers with patent enforcement
• Costs of patent searches, and their impact on the creative flow of software development
• Clear evidence that a software patents regime is squeezing small and independent players out of the industry and creating an oligopoly for the largest players
• Clear evidence that under the software patents regime, the entire 'space' or public commons of programming concepts is being subsumed into private ownership
• Clear evidence and examples of patent law being abused and having a net anti-innovation effect
• Anything else you have bookmarked, or can google upon, which can help build the most solid case.

The most desirable materials will be those written and/or compiled by the most respected academic, business, technical and legal minds. I'd like the front page of the folder to sport a series of punchy quotes.

(Also, if anyone can find the source of the quote attributed to Bill Gates arguing that the modern patents regime, if it existed decades ago, would have slowed the industry to a standstill).

Also very desirable will be testimonials from senior staff of small to medium R&D and body-shop houses, truthfully showing the negative effects patents have had on their ability to compete.

And, very importantly, any brief testimonials from indepenedant developers who have not intentionally stolen intellectual property, but have actually been squashed under patent laws."

Comments

One tip in case presentation...

[Boss, Pointy Haired]

Before you dive into google and read the thousands of pages listed on this subject, try to think up some arguments for yourself.

Once you've formulated some arguments, then use google/google groups to look for confirmation - writings of other people who have formulated the same argument.

This will give you confidence when making your case because you will really understand what you are saying.

If you just recite somebody else's argument without understanding the proof you won't come across as very convincing.

No 1 reason against software patents

[Anonymous Coward]

Proprietary code should be protected by a copyright, not a patent.

You can copyright a work that is a product of intellectual endevour, but you can't patent the words used in writing it, nor can you patent sentence structure and the language used, or the media used to store and distribute. And that is what software patents try to do, restrict the very language use and tools we use to contruct our bodies of work. It is so easy to accidentally discover a method used to solve a problem strickly in a clean room setting that could infringe on some patent.

Copyright is the way to protect software, not patents.

I don't think you should argue this point

[vsack]

Patents as anti-competitive instrument

The whole idea of patents, AFAIK, is to grant a temporary monopoly for the patent holder, and thereby giving them a greater chance at a return for their invested R&D. This isn't a flaw of the system at all. Now how certain patents (software, etc.) are approved is another story.

Re:I don't think you should argue this point

[syo]

Indeed, a patent provides exclusive rights to an expression of an idea, to allow the creator to benefit from the sale of their innovation. This protection is intended to encourage investment in R&D, by ensuring that such work can be profitable.

However, this does not mean that this point should not be argued. Firstly, whether this benefit outweighs the costs of a patent system can be called into question. Patents do serve the function of creating a temporary monopoly; whether doing so for software is desirable or not is not something which should be assumed. (Really, this question could/should be be asked in general for all industries, and has been for a very long time).

I think it is crucial to keep firmly in mind that patents are intended, and created for the exclusive purpose of the betterment of the public good. Patents are justified by claiming, "Without protecting profits, no one would innovate. If we desire innovation, we must protect those who innovate and ensure they can profit from their innovations, so we may all benefit from them. We must have innovation." One might argue that patents and trademarks stifle the free market.

Moreover, this idea of the patent system as a useful and justified mechanism for protecting the innovator, is entire predicated on the granted monolopy being temporary and limited. If, like we have witnessed in the entertainment sector, intellectual property rights are continually extended, the purpose and implementation of patents, copyright and trademarks will be betrayed and the justification of them will become unsupportable.

Your point is accurate, however, I do not think that it supports your conclusion. Patents by design grant monopolies. However, patents can be and are anti-competitive when abused, and may be argued to be anti-competitive in any form. Monopolies cannot be said to be conducive to competition. The limited form of granted monopolies used by the patent system may salvage a type of competitive system. Legitimate arguement for both sides of this debate can be made in a compelling manner. This point is germane to the discussion, and should not be excluded on the basis of the inherently monopolistic nature of patents.

Copyright is the better choice

[Ace905]

The concept of a Patent was never intended to relate to computer software ; a Copyright is a much more accurate and viable protection option for individual companies rights.

With Software Patent, you are protecting an actual system of execution or problem solving. The problem is that the essential knowledge any computer programmer has is not protected (and could not be), and with software in particular there is no *system* that is not a very simple extention of commonly understood concepts. In short, computing overall is simple when you analyze software modularly.

Take for example the attempts to patent, 'click-throughs' or 'downloading software after authenticating'. Attempts have actually been made to patent these concepts, and they are not *bad* examples - in both cases the wording of the patent request was executed in such a way as to gain control over something that was seemingly legitimate because it was a simple extension of 'click-through' or 'downloading'. In both cases the patent *would have* given control over these actual acts. This is not simple wording, it is the nature of software.

My own company develops software, we have a representative for patent and copyright, and we are more than happy to utilize his services as a Copyright agent to protect our rights. We copyright the documents that explain our business, our systems, and which we feel portray us best. Over all the end result is protected business, not a protected product. It is in the representation of a product and a business that competitors gain their foothold ; that should be the real focus here.

Re:And for you US citizens

[selan]

Ya know, if you want to change laws, signing petitions addressed to "The United States Government" is not the way to do it. The US is a representative democracy. Write letters to your congress people, talk to them about your issues, and, for crying out loud, primary elections are Tues. Sept. 10. Vote, people, VOTE!

You're all wrong. The point of patents is progress

[stevenj]

The original point of patents (in the US) was neither to protect profits nor the small inventor, it was to encourage invention and progress:

The Congress shall have Power [...] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries [US Constitution, Article I, Sec. 8].

You're confusing the means with the end, which is the sort of thinking that got us into this mess.

Computer science as a science

[be-fan]

You might want to look at the science angle. Computer algorithms aren't really different from mathematical algorithms. Can you imagine a mathematician patenting his method for finding large primes? Patenting software algorithms is exactly equivilent. Wouldn't it be terrible if Dijkstra had patented the semaphore? Computer science would have come to an end! Computer science is a science like any other. New discoveries should be credited to the people that discovered them, but that shouldn't prevent other people from using and building upon that work. It just stagnates the whole system.