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European Software Patents Not Dead Yet
Ensign Nemo writes "Software patents in Europe still being pushed.
They're at it again and they're not waisting any time. Even though opposition is there the backers of software patents are getting sneakier and sneakier." Poland, if you help us out again, I pledge to never, ever forget you.
If you create something really novel, even if it is in software, why *shouldn't* you be able to get a patent on it?
12:02 Restate my assumptions:
1. Mathematics is the language of nature.
2. Principals and ideas in mathematics are universal truths; hence they are discovered, not created.
3. Computer science is the straight forward application of discreet mathematics. Thus ideas and algorithms written in computers are not patentable.
The motivation behind patents is not to reward people who innovate for the sake of patting them on the back, but to provide insentive for them to begin innovating in the first place, with the hopes that society will benefit from their creation after a small time period.
The reasoning behind patents is dubious in general - it presupposes that there would be less innovation were they not to exist (or even to exist in a more limited form). If history has taught us anything, it is that greed always finds a way to mask its ugly head and I'm sure that businesses would find a way to profit from their inventions even were patents not to exist. Being the first to market (and the name recognition that goes along with it) can be a very powerful ally indeed.
Secondly, it is not clear that the current time period for software patent expiration is anywhere near reasonable. In the fast-changing world of computers and information technology, even a year can be a long enough time period for software to become obsolete. How long do software patents last? 10 years? 17 years?
Then look at the patents that companies try to secure - one click ordering via amazon.com? If the patent on one-click ordering were even remotely influential on the companies decision to implement that feature, then I could perhaps see that a software patent may be useful in achieving its dubious purpose. But in this case, it is the ease of ordering - the desire to improve the customer's experience - from which the implementation gains its lure.
The above question strikes me as no more grounded than when a five year old gets into a fight with his sibling and says "stop copying me!". One person's being the first to have a particular idea does not in anyway entail his or her posession of that idea. So with this in mind, the question is: "If you create something really novel, even if it is in software, why *SHOULD* you be able to get a patent on it?"
This reminds me, next month is FOSDEM (Free and Open source Software Developers' European Meeting) in Brussels: http://www.fosdem.org. I suggest we raid the EU headquarters and talk some sense into the EU ministers.
Being the first to market (and the name recognition that goes along with it) can be a very powerful ally indeed.
To be fair, this was potentially something that patents were about: If a small company or lone inventor comes up with a stunning new product they potentially don't have the capital to get it to market. To get the capital they need to shop the invention around venture capitalists. Once they've made the idea somewhat public (in the shopping around phase) a large company with lots of resources could easily duplicate, produce, and market said invention before the inventor can manage to raise the capital and get production underway. In principal the patent would help alleviate this because the invention could be openly published, but there would still be a window of time for the inventor to raise funds and get his product to market before anyone else was allowed to join in.
Of course in this day and age of NDAs for everything, and the rate at which new products (particularly software) can be brought to market, this sort of concept just doesn't carry as much weight as it use to.
Jedidiah.
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I guess this is one major difference that sets software apart from everything else: R&D cost. As far as I know, R&D for chemicals and proteins (i.e. medicine) is expensive, even after taking the salaries of the researchers/inventors out of the consideration, due to the infrastructure, equipment, and raw material necessary even just to build the prototype. So, for someone (and nowadays, most likely a company) to even get started on a new invention/innovation, he has to have some sort of guarantee that if he succeeds, he will be able to recover his costs and even proft, perhaps---thus, a simple solution is legalized monopoly (and the price-markup that necessarily follows).
On the other hand, software patent? What R&D cost exactly goes into it? Sure, programmers might get paid a lot (or at least there was a time when that was the case...), but if a lone-coder is making a program, other than the so-called "opportunity cost" what other cost is there? Hardware purchase cost? Perhaps---but that's negligible, compared to other expenses (i.e. "cost of living") throughout a year. Multiple hardware purchases (for testing, etc.)? But that would only be limited to programs that deal with the hardware directly, and those don't constitute a majority.
So, with software, the developer doesn't have to worry about recovering the costs because there isn't that much to begin with (now, profit motive is something else, but why should we make a law that make a few people wealthy beyond reason?)---so, there isn't that much incentive software patent gives to innovate. Rather, by creating an artificial barrier-to-entry in the market, it stifles innovation (and yes, the same argument may be used for even traditional patents, but in those cases, it can be argued that the incentive outweighs this).