Virtually everybody who makes GUI apps for Mac OS X uses either Cocoa or Carbon (which both use the other one in their respective implementations) and Quicktime. At least those frameworks would have to be ported first.
See here. I've used a Gentoo live cd a while on my iBook G3 and it worked fine (and no, you don't have to compile anything to start a nice X-environment).
Correct. But that is today. Software development in twenty years will likely look very different.
Will it? It doesn't look that different today than it did 20 years ago. There are some new concepts (OOP, AOP, etc), we have RAD's, but in the end it's still programmers and designers thinking of new algorithms, debugging stuff, and integrating everything into a stable and usable whole.
Consider: None of these arguments is, well, novel - they have thirty years of dust on them. They were all made regarding biotech, too.
I doubt it. Did anyone ever claim the biotech industry is a "cottage industry"? (see the last paragraph) That you barely need any investments to start a new biotech company? That everything underlying biotech innovations in pure maths? That biotech patents pave the way for patents on business methods? That biotech patents could be used to prevent publications of new biotech techniques and not just their use? (program claims) That biotech is pervasive throughout all economic sectors going from grocery shops to space stations, and as such is an "enabling technology" of which hindrances have very broad reaches?
Fortunately, those arguments were declined. Obviously, the predicted cataclysm has not materialized. Today, our biotech industry is basically causing a golden age of medicine - we're creating far more disease cures, far faster, than ever before in history.
To be fair, I've never followed the biotech patent situation. So I just searched for "biotech patents" on Google. The fourth link contains several links which seem to show the controversy is still far from settled. So does the sixth and the eighth. There are of course other views as well (such as the tenth link), but claiming everything is happy happy joy joy with no downsides seems just a tad misleading.
There's also a bit about it in the recent FTC report on patents and innovation. They note that the fact that biotech includes quite a bit of consequential innovation (as opposed to traditional pharmaceuticals) causes some problems. You are presumably aware of the fact that software development is almost nothing but consequential innovation (and lots of reuse as well). The solution proposed by the panel members regarding biotech is what is currently already done in the software world: extensive cross licensing. Of course, you need a lot of patents to be able to join that game.
The industry will become more selective about filing software patents. It must, since absurdities like patents on hash tables will never be useful to anyone. Even large companies cannot afford to throw away vast sums of money on patent portfolios that are not enforceable.
Of course they are useful for those companies! They are strategic assets, used as trading cards or litigation tokens. Enforceability is generally not even a concern, as many small companies can simply not afford the litigation costs (if you have the choice between a $50,000 license or a $2,000,000 lawsuit, what do you pick?)
By approximately 2020, we will have an incredibly well-documented record of the state of software development - both in the form of 50 years of programming journals, and in the form of all previously-filed software patent applications.
And there will be tons more of programming legacy which is not documented in this way at all, but just available as source code (which is also a publication, given that source code
Pascal compilers are designed to produce code fast, not produce fast code...
Delphi uses exactly the same code generator backend as Borland C builder since quite a while. This has nothing to do with Pascal vs C. In fact, with its stricter typing and properties like that after a loop the value of the loop counter is undefined, it's theoretically easier to write an aggressively optimizing Pascal compiler than an aggressively optimizing C compiler.
When was the last time an otherwise-valid patent was rejected because the economic sector to which it pertained was doing just fine at the moment and didn't need any further stimulation?
You do not decide this patent per patent, but over a whole class of subject matter. If something is not patentable subject matter, you cannot have "an otherwise-valid patent" on it. It's true that patentable subject matter has been extended in the US to include software-described algorithms and business methods, but in Europe that is not yet the case (according to the law anyway).
You still have not given any economical rationale as to why this extension is desirable. There is no economic law that states that monopolies on on "complex, non-obvious algorithmic solutions to problems in information-space" help innovation and the economy in these fields (even if we would live in the fantasy world where only patents on complex algorithms were granted). Most studies show in fact the reverse.
Patent law is in essence an economic law. You focus on juridical consistency (everything new, non-obvious and useful should be patentable), but then you completely disregard the ends (economic prosperity), and consider the means (monopolies) and as an end in itself. This may look nice and easy when you're a lawyer, but is not very productive for the rest of us who have to live with the consequences. I also don't see how you can defend this practice only with a reasoning like "we've always disregarded any consequences, so why start now?"
Agreed, and I'm not suggesting that anything other than the description receive copyright protection. I'm suggesting that the underlying method being described is deserving of a different kind of protection.
It may be patentable, but that should be completely independent from whether or not you use software to describe it, and that is not the case in practice. You cannot get a patent on a mathematical algorithm (new/useful/complex or not), but you can get patents on mathematical algorithms when they are described in software (e.g. run-length encoding, which is used in JPEG).
The IT sector as a whole? Probably not, but that's like asking whether patents are necessary to get enough investments in manufacturing. The point is that there may be particular endeavors in IT whose value may be dependent on being able to be the sole supplier of the technology for a while after it is developed.
Patent law is not just about the value that some monopoly has, but also whether the positive effects of granting such monopolies actually stimulates the sector in which they are granted, considering the inherent downsides of granting monopolies.
In software, the description is the implementation (since software is nothing but a description of something).
I strongly disagree. I can describe an algorithm in English, and through the use of visual aids, but further effort must be expended to create working code, just like a blueprint requires further effort to create a working device.
The effort to create working code is also protected by copyright (and not in any way by patent law, for that matter). You're still describing things in code, you're in effect translating.
A computer program is not a device, it's basically equivalent to a technical instruction manual (in a machine-interpretable form). A working device is not protected by copyright, a computer program is (for the very reason that it is a written work, and not a device).
Whether or not what you describe is patentable, should be entirely independent from how you describe it
You're making my point for me here. Protecting only the implementation through copyright should be independent of protecting the method through patent.
The description is indeed the only thing that is protected by copyright, that's how copyright is designed. But that does not mean that all new things done on a computer per definition have to be patentable.
Yet, an awful lot of unpatentable stuff suddenly becomes patentable if you say it's done by a computer.
Agreed. Something shouldn't simply become patentable by virtue of doing it on a computer. But in cases where the thing being patented is not only being done on a computer, but also being done for the very first time, whether a computer happens to be involved or not, should be protectable.
I think you misunderstood me. I wasn't talking about novelty, I was talking about subject matter. No, I do not think that all new things done on a computer have to be per definition monopolizable. There is no economic rationale for this. My point is merely that if you have a patentable invention, that it must not become "not patentable" if you say you do it with a computer.
However, conversely, I do not think that if some (new) thing is not patentable (for example a faster fourier transform), that it should become patentable if you say it's done by a computer ("to process video or sound data" or any other "useful purpose"). Why?
Because of the previously mentioned economic studies (the most important argument, which you did not address)
Because monopolies on mathematical algorithms are generally considered too broad, and saying it has to be done "on a computer" does not significantly reduce the scope in practice (who's going to do an FFT by hand?), nor does specifying a "useful purpose" (it's generally quite easy to specify most if not all things the algorithm is useful for)
The patent then still granted for the achievement of discovering the new mathematical method (because the work of describing it in a way that a computer understands is covered by copyright). I find it hypocrite to only allow patents on it if one says it's done by a computer, if you at the same time keep claiming such achievements are not patentable. The patent is not granted because you were such a genius to us
Actually it does, otherwise the USPTO wouldn't try to influence the European discussion. You can bet that if Europe does not legalise software patents, this will have quite a profound effect on the US situation. At least the whining "abolishing software patents is not realistic" whiners might shut up, for a start.
Because the kind of hard work and knowledge and investigation and thought that goes into devising a solution to a difficult problem in matter-space is exactly the kind that goes into devising a solution to a difficult problem in information-space. One type of problem solving shouldn't be protected more than the other simply because you need bolts and motors and lubricant to implement it.
It has indeed nothing to do with implementation. It has everything to do with the economic effects:
Are patents necessary to get enough investments in the IT-sector?
Are the positive effects of granting software patents larger than their associated negative effects?
The problem is that the answer is "no" in both cases. Most economic studies conclude either that, or "we don't know". There's only one in the entire world that I know of which claims the reverse.
And there are differences between the software world and other sectors which change the effects that patents have there, see e.g. this text (under the black box) from the US National Research Council.
Why not? Should Xerox not have been granted a patent on the xerographic photocopy process, but rather only a copyright on their machine's manufacturing bluep
In the physical world, there is the process, a description of the process and an implementation of this description. In software, the description is the implementation (since software is nothing but a description of something). Whether or not what you describe is patentable, should be entirely independent from how you describe it. Yet, an awful lot of unpatentable stuff suddenly becomes patentable if you say it's done by a computer.
Sorry, I just noticed I forgot to reply to one of your remarks:
Case in point: offering one company a monopoly on selling things via the internet, makes investment in all online shopping companies a lot less attractive
Your example monopoly is a bit broad, and would indeed stifle the market; however, patents are not nearly as broad. You essentially describe a patent on the entire industry, an absurd example, and the only one in which your point holds.
Unfortunately, that patent is quite realistic (at least in Europe, but I assume there are US equivalents). You may want to look at claim 1 of both patents mentioned next to the first patent at webshop.ffii.org. Of course, they don't claim "selling over the internet", but what they do claim corresponds to the way you more or less have to implement this. Those claims are extremely broad, despite the number of words they use.
FWIW, the first claim of the MP3 patent mentioned on that page is extremely broad as well, and doesn't just cover MP3 compression by a long shot. In fact, I've still to encounter a software patent with narrow claims. And yes, I know the first claim of a patent is always as broad as possible and that the rest refines on this, but you still have to go to court to defeat the broad claim (or take a license, which is often much cheaper and thus the preferred option).
1&1 is not an open source company. And if you look at the signatories of this (Dutch) press-release of Belgian companies protesting against software patents, you'll find a bank and 9 companies, none of which is particularly open source. And at least the top two ones (EVS and The IRIS Group are quite big.
You cited the AIPLA and IPO statements as supporting your view that "software patents do not help the economy and innovation at all."
I initially cited them while saying "It [having no software patents]'s only far-fetched for IP-attorneys that don't think that the economy [typepad.com] should be taken into account [typepad.com] when deciding about patent policy." Afterwards, I indeed inferred the above in your reply.
They are talking about uncertainty in the law, which is a blight. Uncertainty restrains economic behavior by increasing risk. The statement states that allowing the PTO and courts--rather than congress--to inject economic considerations into their decision-making would be bad, because it would not be in actual legislation, but in rules promulgation--making it ad hoc and slightly arbitrary. But their point is definitely not that patents hurt economic activity. Their point is that uncertainty in rule application would hurt economic activity. And I agree with them.
The point the FTC made is that this economic balancing requirement is basically a foundation of the patent system. Patents are monopolies offered by society. They're not a natural right, they are something you can get if society thinks it's in its own advantage to grant you that monopoly. Some filters are subject matter (although there's not much left of that), novelty, non-obviousness and usefulness, and all introduce uncertainty (you can't know all prior art, you don't know what the patent examiner will think is obvious to a skilled person in the art).
I do not think that considering whether or not something in a field where until now no patents have been granted should be patentable or not, introduces that much extra uncertainty. I think you should read the recommendation of the FTC in that light, not that each patent should also be subjected to an "economic impact" assessment. You always have to look at both sides, especially since it were in fact the PTO and the courts that extended the patentable subject matter to software-related innovations (and not Congress, although they also did not forbid it afterwards).
Given Machlup's famous quote "If we did not have a patent system, it would be irresponsible... 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", erring on the safe side seems the prudent choice here.
6. IPO does not support the FTC recommendation concerning considering potential harm to competition in deciding upon the scope of patentable subject matter.
#6 seems to contradict your position, because the IPO is arguing that considering the scope of patents should not take "potential harm to competition" into account. Your position is based on the idea that patents harm competition. So they seem to directly contradicting you there.
I'm afraid I don't follow you here. My basic point was that IP lawyers do necessarily recommend what's best for the economy. And the reason for that is (possibly, in my opinion) that software patents are bad for the economy. Competition is good for the economy. So them arguing against taking into account competition means that they (again) give precedence to the holy principle that everything should be patentable, regardless of economical consequences.
"There is no economic law that says "more and stronger exclusion rights per definition result in a healthier economy". And there's also no juridical law that says "lawyers will always defend what's in the best interest of the economy as a whole""
I am not arguing that patent protection should be extended to absurd levels;
I'm not talking about absurd levels of patents. I'm saying that the (according to you probably completely reasonable) extension of
It sounds strange, since the whole concept of IP is based on economic incentive.
That's the theory, yes. In practice, not all types of IP are able to meet that goal. There is no economic law that says "more and stronger exclusion rights per definition result in a healthier economy". And there's also no juridical law that says "lawyers will always defend what's in the best interest of the economy as a whole".
Actually, I was talking about investment incentive, not incentives to innovate. Competition indeed promotes innovation. But property rights promote investment.
One person's rights are another person's limitation. You always need a proper balance to get good results on the whole. You cannot look at single entities in the market and conclude from that it must be beneficial on the whole (or harmful for that matter).
Case in point: offering one company a monopoly on selling things via the internet, makes investment in all online shopping companies a lot less attractive.
You also say "almost all studies...." I assume this means you have read some studies that support the arguments for patents in software.
Indeed, there is also one economical study in the entire world (that I know of, I really don't know any others) that claims that software patents are generally beneficial, and that patent thickets are a myth. You can find it here. And here's a rebuttal.
Litigation is not the only way patents are used. There is a large market in licensing, and lots of money changes hands based on patents without ever litigating.
Yes, but that's not productive. In fact, every time such a transfer occurs, you extract money from the software business and invest it in lawyers. Something like that is only defensible if the effects on the whole are positive, e.g. if such transfers are necessary to spread knowledge throughout the industry. That is not the case with the software sector (see the studies I pointed you to).
Your argument, respectfully, sounds like this: "Civil tort litigation can cost millions. Therefore we should do away with tort claims."
My argument was simply that small companies do not have the means to enforce software patents, and that therefore arguing that they are beneficial for small companies is at least very doubtful. That's not even specific to software patents, it's a general recognised problem of the patent system.
However, in some sectors this negative effect may be offset by other, positive effects that patents have (e.g., if you need tens of millions of dollars to even start doing your product development, the cost a few patents on top of that can be disregarded).
The point remains that lots of capital goes into software based on property rights.
You keep talking about "property rights" as if software patents are the only form of property rights in the software industry. They're not by a long shot, as you probably know. I'm also not asking for abolishment of copyright or trademarks or anything else.
Remove those rights and you will weaken the industry by reducing the amount invested in it.
I fail to see how you can weaken an industry by stopping to invest in something which hampers that same indust
The economy is exactly why software patents should exist.
Then why do you think those IP-lawyer organisations state that you should not take into account the economy? It's quite simple: because software patents do not help the economy and innovation at all.
Not all large companies may favor software patents (particularly those who have not invested heavily in IP protection);
There is a world of a difference between the catch-all "IP protection" and software patents. Particularly companies who use other means to protect their "IP" are indeed opposed to software patents. The reason is that even if you do not think that software patents are needed to protect your investments, you still need them if they are legalised (since otherwise you are an easy prey for all those software patents owners out there).
but lots of money has gone into developing software *because* of software patents.
Prove it. Almost all studies I've seen claim that the incentives to innovate in software is competition.
It is good for startups too, who can protect an idea and attract capital from investors.
Of course, that's exactly why all these small companies are protesting the legalisation of software patents in Europe.
Investors like property rights.
Finally something that's true. But software patents are akin to the "millions of visitors" in the dot com bubble age: they by no means show that a company will be able to put out a solid product or that it will be very innovative. At best, they allow a company to go for an EOLAS or so. Did you know that enforcing a software patent in court in the US costs between US $1,500,000 and $2,000,000 (if you're lucky)? Same for defeating one in court. How many small companies can afford this, do you think? Those patents are worthless if you can't afford to enforce them.
It seems to me that patent rights in software can co-exist with open source. They co-exist now
It seems to me you're totally missing the point. This has nothing to do with open source.
It's only far-fetched for IP-attorneys that don't think that the economy should be taken into account when deciding about patent policy.
Large software development houses derive a large percentage of their income from royalties from intellectually-based patents.
Most software patents are not owned by software developers, but by hardware developers (they got patents in the past for their hardware, so they simply continue that tradition). Anyway, several large companies also lose a lot of money because of software patents. Examples are the companies sponsoring this campaign, but another is e.g. Cisco Systems.
You're very naive if you think all large companies favor software patents. And you're even more naive if you think that per definition means that Europe will legalise software patents.
It's simply a fact that the current patent race is quite similar to an arms race, and that if everyone started enforcing their patents we'd have a "software nuclear winter", in the sense that no-one could still write a program without infringing any patent.
It's not a hyperbole, because it's not meant to show that software patents are supposedly just as bad as Hiroshima or Nagasaki, but simply an analogy because of the way they are used.
If publication is forbidden, what is the effect upon 'prior art'?
Nothing. Even if there is no program claim on some method described in software, people can still develop it and not publish it. The only thing is that patents with such claims can be used to forbid all "computer-interpretable" publications of descriptions of the patented "process" (regardless of whether this is a chemical process or 1-click shopping).
The reason is that in case of a program claim, you do not get a patent on "a computer which, when a program is loaded into its memory, executes the following steps:...", but on "a computer program, stored on a carrier or in a network, which, when loaded into a computer memory causes the computer to execute the following steps:...".
So all computer programs which contain the patented process are patented as if they were objects (by adding the "carrier" stuff, to turn the immaterial programs into material entities). It's a bit like trying to work around the non-patentability of a text describing how to perform a chemical reaction by trying to patent a book (or any other carrier) containing that same text.
Now I pour years into my (supposedly) new variation on the theme of moving information in a binary sort of way, and someone pulls something from their colostomy-bag of tricks?
No, because only published prior art counts when assessing the novelty of a technique someone wants to patent.
People mod this as funny, but why not? Patent-related business methods (implemented in software, of course) are already getting patented now. I guess you could see the introduction of laws also as some kind of business method in certain cases (DMCA anyone?)
Anyway, not all lawyers seem to be happy with this, but as Karl-Friedrich Lenz writes:
If in their view software patents are so desirable, the patent attorney community should eagerly volunteer to be the first in line for the fantastic technological advances they promise everybody else. Then, after the great leap ahead in patent attorney productivity gained by giving them patent protection for themselves becomes clear, we can consider gradually expanding the system to other areas.
Plenty of alternatives have already been proposed. The problem is that patent lawyer associations simply do not want any changes that could substantially reduce the number of granted patents (see points 6 and 10).
Besides, this proposal has a problem of its own: software patents can include so-called "program claims". In that case, not just the use of a program which infringes the patent, but also the publication of such a program can be forbidden. Many software patents (and even non-software patents) are starting to include those.
If you start adding source code to patents, then those patent descriptions themselves can infringe on other patents. It's completely silly since the patent system is supposed to encourage publication of information, but nowadays it can also be used to for forbidding publication of information (because some people think software is the same as a "machine", instead of simply a description of something).
And the problem is that Novel does not support legislation to properly ban software patents in Europe. They use weasel words intended to mislead the casual reader about their stance on the legalisation of software patents in Europe. See the comments by Hartmut Pilch from FFII.
Slashdot Mirror
Carbon is not going away any time soon, especially given that Cocoa and Carbon are interdependent.
But that was november 2003. I'm quite sure this has been solved in the mean time.
Virtually everybody who makes GUI apps for Mac OS X uses either Cocoa or Carbon (which both use the other one in their respective implementations) and Quicktime. At least those frameworks would have to be ported first.
See here. I've used a Gentoo live cd a while on my iBook G3 and it worked fine (and no, you don't have to compile anything to start a nice X-environment).
Yes, I really loved getting all those spams. I hope they catch the idiot that sent those mails as well.
Will it? It doesn't look that different today than it did 20 years ago. There are some new concepts (OOP, AOP, etc), we have RAD's, but in the end it's still programmers and designers thinking of new algorithms, debugging stuff, and integrating everything into a stable and usable whole.
I doubt it. Did anyone ever claim the biotech industry is a "cottage industry"? (see the last paragraph) That you barely need any investments to start a new biotech company? That everything underlying biotech innovations in pure maths? That biotech patents pave the way for patents on business methods? That biotech patents could be used to prevent publications of new biotech techniques and not just their use? (program claims) That biotech is pervasive throughout all economic sectors going from grocery shops to space stations, and as such is an "enabling technology" of which hindrances have very broad reaches?
To be fair, I've never followed the biotech patent situation. So I just searched for "biotech patents" on Google. The fourth link contains several links which seem to show the controversy is still far from settled. So does the sixth and the eighth. There are of course other views as well (such as the tenth link), but claiming everything is happy happy joy joy with no downsides seems just a tad misleading.
There's also a bit about it in the recent FTC report on patents and innovation. They note that the fact that biotech includes quite a bit of consequential innovation (as opposed to traditional pharmaceuticals) causes some problems. You are presumably aware of the fact that software development is almost nothing but consequential innovation (and lots of reuse as well). The solution proposed by the panel members regarding biotech is what is currently already done in the software world: extensive cross licensing. Of course, you need a lot of patents to be able to join that game.
Of course they are useful for those companies! They are strategic assets, used as trading cards or litigation tokens. Enforceability is generally not even a concern, as many small companies can simply not afford the litigation costs (if you have the choice between a $50,000 license or a $2,000,000 lawsuit, what do you pick?)
And there will be tons more of programming legacy which is not documented in this way at all, but just available as source code (which is also a publication, given that source code
You still have not given any economical rationale as to why this extension is desirable. There is no economic law that states that monopolies on on "complex, non-obvious algorithmic solutions to problems in information-space" help innovation and the economy in these fields (even if we would live in the fantasy world where only patents on complex algorithms were granted). Most studies show in fact the reverse.
Patent law is in essence an economic law. You focus on juridical consistency (everything new, non-obvious and useful should be patentable), but then you completely disregard the ends (economic prosperity), and consider the means (monopolies) and as an end in itself. This may look nice and easy when you're a lawyer, but is not very productive for the rest of us who have to live with the consequences. I also don't see how you can defend this practice only with a reasoning like "we've always disregarded any consequences, so why start now?"
It may be patentable, but that should be completely independent from whether or not you use software to describe it, and that is not the case in practice. You cannot get a patent on a mathematical algorithm (new/useful/complex or not), but you can get patents on mathematical algorithms when they are described in software (e.g. run-length encoding, which is used in JPEG).Patent law is not just about the value that some monopoly has, but also whether the positive effects of granting such monopolies actually stimulates the sector in which they are granted, considering the inherent downsides of granting monopolies.
The effort to create working code is also protected by copyright (and not in any way by patent law, for that matter). You're still describing things in code, you're in effect translating.
A computer program is not a device, it's basically equivalent to a technical instruction manual (in a machine-interpretable form). A working device is not protected by copyright, a computer program is (for the very reason that it is a written work, and not a device).
The description is indeed the only thing that is protected by copyright, that's how copyright is designed. But that does not mean that all new things done on a computer per definition have to be patentable.
I think you misunderstood me. I wasn't talking about novelty, I was talking about subject matter. No, I do not think that all new things done on a computer have to be per definition monopolizable. There is no economic rationale for this. My point is merely that if you have a patentable invention, that it must not become "not patentable" if you say you do it with a computer.
However, conversely, I do not think that if some (new) thing is not patentable (for example a faster fourier transform), that it should become patentable if you say it's done by a computer ("to process video or sound data" or any other "useful purpose"). Why?
Actually it does, otherwise the USPTO wouldn't try to influence the European discussion. You can bet that if Europe does not legalise software patents, this will have quite a profound effect on the US situation. At least the whining "abolishing software patents is not realistic" whiners might shut up, for a start.
- Are patents necessary to get enough investments in the IT-sector?
- Are the positive effects of granting software patents larger than their associated negative effects?
The problem is that the answer is "no" in both cases. Most economic studies conclude either that, or "we don't know". There's only one in the entire world that I know of which claims the reverse.And there are differences between the software world and other sectors which change the effects that patents have there, see e.g. this text (under the black box) from the US National Research Council.
In the physical world, there is the process, a description of the process and an implementation of this description. In software, the description is the implementation (since software is nothing but a description of something). Whether or not what you describe is patentable, should be entirely independent from how you describe it. Yet, an awful lot of unpatentable stuff suddenly becomes patentable if you say it's done by a computer.FWIW, the first claim of the MP3 patent mentioned on that page is extremely broad as well, and doesn't just cover MP3 compression by a long shot. In fact, I've still to encounter a software patent with narrow claims. And yes, I know the first claim of a patent is always as broad as possible and that the rest refines on this, but you still have to go to court to defeat the broad claim (or take a license, which is often much cheaper and thus the preferred option).
1&1 is not an open source company. And if you look at the signatories of this (Dutch) press-release of Belgian companies protesting against software patents, you'll find a bank and 9 companies, none of which is particularly open source. And at least the top two ones (EVS and The IRIS Group are quite big.
I initially cited them while saying "It [having no software patents]'s only far-fetched for IP-attorneys that don't think that the economy [typepad.com] should be taken into account [typepad.com] when deciding about patent policy." Afterwards, I indeed inferred the above in your reply.
The point the FTC made is that this economic balancing requirement is basically a foundation of the patent system. Patents are monopolies offered by society. They're not a natural right, they are something you can get if society thinks it's in its own advantage to grant you that monopoly. Some filters are subject matter (although there's not much left of that), novelty, non-obviousness and usefulness, and all introduce uncertainty (you can't know all prior art, you don't know what the patent examiner will think is obvious to a skilled person in the art).
I do not think that considering whether or not something in a field where until now no patents have been granted should be patentable or not, introduces that much extra uncertainty. I think you should read the recommendation of the FTC in that light, not that each patent should also be subjected to an "economic impact" assessment. You always have to look at both sides, especially since it were in fact the PTO and the courts that extended the patentable subject matter to software-related innovations (and not Congress, although they also did not forbid it afterwards).
Given Machlup's famous quote "If we did not have a patent system, it would be irresponsible... 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", erring on the safe side seems the prudent choice here.
I'm afraid I don't follow you here. My basic point was that IP lawyers do necessarily recommend what's best for the economy. And the reason for that is (possibly, in my opinion) that software patents are bad for the economy. Competition is good for the economy. So them arguing against taking into account competition means that they (again) give precedence to the holy principle that everything should be patentable, regardless of economical consequences.
I'm not talking about absurd levels of patents. I'm saying that the (according to you probably completely reasonable) extension of
I posted links in my original reply to you. For clarity's sake:
That's the theory, yes. In practice, not all types of IP are able to meet that goal. There is no economic law that says "more and stronger exclusion rights per definition result in a healthier economy". And there's also no juridical law that says "lawyers will always defend what's in the best interest of the economy as a whole".
One person's rights are another person's limitation. You always need a proper balance to get good results on the whole. You cannot look at single entities in the market and conclude from that it must be beneficial on the whole (or harmful for that matter).
Case in point: offering one company a monopoly on selling things via the internet, makes investment in all online shopping companies a lot less attractive.
Indeed, there is also one economical study in the entire world (that I know of, I really don't know any others) that claims that software patents are generally beneficial, and that patent thickets are a myth. You can find it here. And here's a rebuttal.
Yes, but that's not productive. In fact, every time such a transfer occurs, you extract money from the software business and invest it in lawyers. Something like that is only defensible if the effects on the whole are positive, e.g. if such transfers are necessary to spread knowledge throughout the industry. That is not the case with the software sector (see the studies I pointed you to).
My argument was simply that small companies do not have the means to enforce software patents, and that therefore arguing that they are beneficial for small companies is at least very doubtful. That's not even specific to software patents, it's a general recognised problem of the patent system.
However, in some sectors this negative effect may be offset by other, positive effects that patents have (e.g., if you need tens of millions of dollars to even start doing your product development, the cost a few patents on top of that can be disregarded).
You keep talking about "property rights" as if software patents are the only form of property rights in the software industry. They're not by a long shot, as you probably know. I'm also not asking for abolishment of copyright or trademarks or anything else.
I fail to see how you can weaken an industry by stopping to invest in something which hampers that same indust
You're very naive if you think all large companies favor software patents. And you're even more naive if you think that per definition means that Europe will legalise software patents.
Someone can simply submit it again when CmdrTaco is editor on duty, so it can be posted as a dupe :)
It's simply a fact that the current patent race is quite similar to an arms race, and that if everyone started enforcing their patents we'd have a "software nuclear winter", in the sense that no-one could still write a program without infringing any patent.
It's not a hyperbole, because it's not meant to show that software patents are supposedly just as bad as Hiroshima or Nagasaki, but simply an analogy because of the way they are used.
The reason is that in case of a program claim, you do not get a patent on "a computer which, when a program is loaded into its memory, executes the following steps: ...", but on "a computer program, stored on a carrier or in a network, which, when loaded into a computer memory causes the computer to execute the following steps: ...".
So all computer programs which contain the patented process are patented as if they were objects (by adding the "carrier" stuff, to turn the immaterial programs into material entities). It's a bit like trying to work around the non-patentability of a text describing how to perform a chemical reaction by trying to patent a book (or any other carrier) containing that same text.
No, because only published prior art counts when assessing the novelty of a technique someone wants to patent.Anyway, not all lawyers seem to be happy with this, but as Karl-Friedrich Lenz writes:
Besides, this proposal has a problem of its own: software patents can include so-called "program claims". In that case, not just the use of a program which infringes the patent, but also the publication of such a program can be forbidden. Many software patents (and even non-software patents) are starting to include those.
If you start adding source code to patents, then those patent descriptions themselves can infringe on other patents. It's completely silly since the patent system is supposed to encourage publication of information, but nowadays it can also be used to for forbidding publication of information (because some people think software is the same as a "machine", instead of simply a description of something).
And the problem is that Novel does not support legislation to properly ban software patents in Europe. They use weasel words intended to mislead the casual reader about their stance on the legalisation of software patents in Europe. See the comments by Hartmut Pilch from FFII.
No, it's reserved. Ask arin if you don't believe me.