Linked by Christian Schaller on Tue 19th Apr 2005 18:26 UTC
Legal We today face the risk of software patents being approved in the EU because not enough parliamentary members will be showing up to vote. Due to this it is important for those of us who oppose software patents to make sure EU parliament members see the damage software patents cause, so they realize it is important to be there to vote providing the needed absolute majority. But sending out a clear message is also important for the process of patent reform in the US and other places who have fallen into the trap of introducing them.
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go here
by raver31 on Tue 19th Apr 2005 18:47 UTC

http://www.thankpoland.info/

and they have a template for letter. get the letter, fill in the details and send it to your MP.

we are having elections on May 5th in the UK, when they knock your door to canvass you, ask them how they stand on software patents.

if they have not got a clue, tell them that you will not vote for them, and give them a copy of that letter,
if they support patents, tell them you will not vote for them, and give them a copy of that letter,
if they are against patents, tell them you might vote for them, give them a copy of that letter.

re:Patents
by AdrianRyan on Tue 19th Apr 2005 18:53 UTC

As an American reader, I'm slightly confused. Why, exactly, are software patents bad? Don't patents protect intellectual property and make it so that companies (Microsoft, Adobe, whoever) can not worry about whether their prodecuts are going to be reverse engineered? I really don't see what is bad about this. If someone could clear this up for me that would be great.

@ adrianryan
by raver31 on Tue 19th Apr 2005 18:59 UTC

you are joking aren't you ?

software patents do not protect intellectual property. that is what the copyright laws are for.

anyone with money can patent parts of software in the US, for example, if I had the cash, I would apply for the patent for desktop wallpapers....

now, if the patents office grants me the patent, then any system that used desktop wallpapers would be in breech of my patent and I would have the rights to sue them.

I can also desktop wallpaper licenses so anyone who wants to use them will pay me.

The only people this will benefit will be the largest companies... not I did not say software companies... as ANYONE with the cash can buy them all up...

This is all clearly not right and the US should scrap the idea.


IP is well protected by copyright laws

@raver31
by Altair on Tue 19th Apr 2005 19:06 UTC

Politicians don't listen to hundreds of similarly templated letters. If you want to launch a real campaign you need everybody to write their own stuff to have any actual impact.

As for the patents, you cannot get the patent for desktop wallpapers. You have to be the first person to implement the idea in order to get it so your reasoning is a little flawed. That being said, software patents are not the best way to do things. There does need to be something to protect companies and programmers from people stealing their work but patents and copyrights aren't the answer in this case.

Damnnn.....
by Brostenen on Tue 19th Apr 2005 19:12 UTC

If u have software patents, u could patent software in the same way as patenting stairs, and if someone wanted to put stairs in their building, they had to pay u for each steps in the staircase.... Software-patents are bad, ud see...

If i had the money, i would patent something like this: Software to add the number one to one...
Then U all would be in trouble...

U see!!!! Software patents are bad.

@AdrianRyan
by m_abs on Tue 19th Apr 2005 19:18 UTC

First please don't use the term intellectual property (IP), it was only invented to confuse people, if you want to discuss softwarepatents use the term softwarepatents, if you want to discuss copyright use that term etc...

It is a misconception that without patents on software companies have no protection of their products, but this is not true, there is already copyright which is much better and much more fair to all parties.

There are many problems with softwarepatents (swpat), one is the it is imposible to check all 30000+ patents to see if your product violates it, thous you can violate a patent without knowing. It costs a lot of money to take out a patent, money FLOSS-developers and SMBs don't have or should/could use on developing software.
There are also the cost of defending your patent or defending your company in a patent lawsuit, again money that should have been spend on developing.
Because of the vast of money two things will IMO happen, innovation will slow down and productcost will go up.
Patents are only good for big companies like Microsoft, adobe and IBM, and their lawyors(spelling?). But a bad thing for SMBs, FLOSS-developer and consumers.

That's just some of the problems.

PS.: Reverseenginering is not a bad thing (for the consumer that is), it insures interoperation and reduces vendor lock-in.

Examples!
by BR on Tue 19th Apr 2005 19:19 UTC

"Due to this it is important for those of us who oppose software patents to make sure EU parliament members see the damage software patents cause, so they realize it is important to be there to vote providing the needed absolute majority."

It sounds to me like your case would be far more effective if you had actual examples of software patents doing what you claim they're doing. Not any "It might..." speculation.

How Software Patents Actually Work
by Metic on Tue 19th Apr 2005 19:20 UTC

How Software Patents Actually Work,
an Animation by Gavin Hill:

http://wiki.ffii.org/SwpatAnim050418En

related
by Anonymous on Tue 19th Apr 2005 19:23 UTC

Take a look at this:

http://www.rty.ca/~bdiddy/?q=node/187

I thought it was a good read.

v You are all missing the backbone principle here
by AdmV on Tue 19th Apr 2005 19:27 UTC
@BR
by Christian Schaller on Tue 19th Apr 2005 19:30 UTC

The whole article was meant to build up under that statement, with links going out to many examples. I suggest you follow the links to see the examples you are looking for.

RE: Examples!
by Metic on Tue 19th Apr 2005 19:31 UTC

Horror galleries of already approved software patents:
http://webshop.ffii.org/
http://swpat.ffii.org/patents/samples/index.en.html
http://www.oreillynet.com/pub/q/patent_list

Groklaw's new patent resource page:
http://www.groklaw.net/staticpages/index.php?page=20050402193202442

A good example of the stupidity in practice: the patent concerning double clicking:
http://patft.uspto.gov/netacgi.../6,727,830

look up your mep
by ssam on Tue 19th Apr 2005 19:31 UTC

if you are in the uk, look up your mep here http://www.europarl.org.uk/uk_meps/MembersMain.htm

re:re:Patents
by I'm not telling... on Tue 19th Apr 2005 19:32 UTC

The author states The goal of a functioning market economy is to generate as much wealth as possible for as many people as possible.. I don't agree with this, the function of any economy is the allocation of scarce resources. As long as air is universally breathable, there was not need to make access to clean air an economic consideration. When we find that breathing bad air causes diseases, we need to allocate scarce resources to fight the disease. Suddenly, air quality is an economic issue.

In this light, we need to ask what is the scarce resource that we need to allocate? The economic justification for software copyright is it takes effort (a programmer's scarce time and tallent) to make good code, so we introduce copyright to grant the developer (or his employer) a way to profit. This encourages professional software development. The volume and quality of open source software must make us reexamine our underlying ecomonic assumpitions that lead to copyright. But, the copyright law can also be used by open source developers to ensure that open source software remains open.

But what is the economic justification for software patents? I must be that certain software designs and certain applications of software are novel and that the creators of these new ideas need protection. However, if I look at ths crap that is being submitted and patented, I cannot help but think that we are strangling an entire generation of software developers. Patent law prohibits mathematics and 'algorithms' from being patented on the grounds that they are 'discovered' rather than 'invented'. Patents are also to be rejected if they are 'obvious to a practitioner of the arts.' In my opinion, this means that software that can be produced in a shell script by combining standard Unix command utilities should (almost certianly) fail the 'non-obvious' test. If patent offices would to a better job of rejecting patents that fail either of these conditions, we would a much smaller number of software patents.

Until patent offices understand the software development process, ther needs to be a moritorim on patents. There also needs to be documents that define what consititutes the current 'state of the art'. It almost seems that the patent offices are incapable of any literature search that doesn't involve a search of the patent database. That may be excusible in many fields where patents have been the norm, but it is a disaster in software patents. Since the patent offices in the US and Europe have proven themselves incapable of rejecting crap patents, I feel that software patents are harmful and should be rejected.

RE: Examples!
by Metic on Tue 19th Apr 2005 19:41 UTC

...sorry, the last link I mentioned above didn't work.
So, the official US patent concerning double clicking (etc.):
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d...

Another example: Microsoft has been granted rights to the "IS NOT" operator commonly used in BASIC programming:
http://www.techimo.com/newsapp/index.pl?photo=12465

Really, how stupid can the USPTO (and the other people behind such decisions) get? And now the EU bosses want the EU to follow the USPTO stupidity... (sigh)

not just software patents
by rspickles on Tue 19th Apr 2005 19:45 UTC

It's not just software patents that block advancement its – all patents. If the Wright Brothers patents been truly enforced it would have taken more than 30 years to get beyond the Wright Flier and get to the single stick type of control. The inventors of common flying systems (flaps, ailerons, joy stick) used today in all aircraft – first got into the air by “stealing” the Wright Brothers basic wing design and wing warping methods. Fact is the Wright Brothers did not innovate after the basic Wright Flier became operational, that fell to others and they started almost the instant that the Wright Brothers got air born.

Patents were first brought into existence as we know them in the US Constitution in 1789. Before this time Kings would sometimes grant special monopolies to the inventor of some item. This was a time that innovation went at a much slower pace than today. Then giving someone a lock on an idea for a few years did not cause much havoc in the market or delayed other new ideas much as the new ideas were coming at a much slower pace even before the new patents were enforced.

Expanding patents can only lead to more havoc and a slow down of the rates of invention.

re:Patents
by Uno Engborg on Tue 19th Apr 2005 19:51 UTC


As an American reader, I'm slightly confused. Why, exactly, are software patents bad? Don't patents protect intellectual property and make it so that companies (Microsoft, Adobe, whoever) can not worry about whether their prodecuts are going to be reverse engineered? I really don't see what is bad about this. If someone could clear this up for me that would be great.


The problem is that its almost impossible to determine if there is prior art. Most of the things that is patented in software today is obvious or close to obvious to a person with a degree in CS. This means that employees of Microsoft easily without knowing it could violate patents without knowing it. In a product like windows, MS-word or some major Adobe product I would guess that there are hundreds or more problems/product.

Patents is not really a problem as long as these patents are owned by other sofware makers, then they could probably make some cross licence agreement as any software maker that make a medium size or bigger product will have similar problems.


Now, what if the patent is owned by a law firm not interested in making sofware but just cash in on the marketing efforts made by Microsoft or whoever violates the patent. In fact the only kind of business that have a chance on make any money on software patents is the ones that do not produce anything but ideas.

This means that sofware patens just becomes a financial risk even to large companies like Microsoft and IBM. To smaller companies that risk may mean that its harder to get financial backing to some new project and that means that innovation suffers.

Speaking of law firms, the job of a lawyer is actually quite similar to that of a software developer. He works with a strict set of rules and combines them in new ways to create a product that serves his customer. Why shouldn't he be able to patent that? Lawyers frequently look up case history, before a trial so they wouldn't have the problem of finding prior art that the software developer has. That way a law firm could get good at something and get money from all other lawyers that utilizes the same loopholes in the law to give their customers some smart advice.

Similar things could be applied to litterature. I imagine that there are far more pennyless novelists than there are programmers why shouldn't they have the same protection for their experessions of their thaughts. After all they have a much richer language to express ideas than "if" "then" "else" "while" that the programmer is confined to. So they would have a far better chance of making something unique worht protection.

If you write a criminal novel and come up with a great new concept that you think nobody ever have used why shouldn't you be able to protect that idea. E.g. if you your character commits murder by using a gun, shouldn't you be able to patent that. Perhaps you add some love to your story, but unfortunately that may allready be patented so you have to do without, or pay licence fees.


intended purpose of the patent..
by ? on Tue 19th Apr 2005 19:58 UTC

The intended purpose of the patent is to allow an inventor to collect $$$ for his innovative idea.


It's second purpose is to cause new innovation for the same process: If someone patent's a certain type of can opener, it forces others who don't want to pay the royalties, to develop an brand new way of opening cans. This would lead to a better way of doing things since the patents force you to explain EXACTLY HOW your idea works by providing artwork.


These are all tangable things I've mentioned so far. I find it difficult to believe the US Patents given to Amazon for the 1 click purchase system, especially since the artwork is so worthless. It is LITERALLY patenting a concept, like patenting division or patenting a way to solve fractions. Math textbook writers are not allowed to patent a shortcut for solving for X when dealing with ratios, no matter how novel the concept may seem.

I don't understand why these claims aren't just scoffed at and shot down.

The problem is that...
by Lumbergh on Tue 19th Apr 2005 20:02 UTC

The things that are getting patented should in no way get patented. "one-click-shopping"...give me a break. If something is truly innovative then I have no problem rewarding those that innovate.

man...
by ? on Tue 19th Apr 2005 20:07 UTC

MS is trying to patent:
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d...


SNK's Neo Geo had this WAY before 2002, where when playing certain games (applications,) holding down a button would produce a different result than simply pressing it. I believe DIGITAL STOP WATCHES also have used this in the 1980's.

If this is not rejected outright, Casio should get a nice legal notice.

v Michelle the resistance
by AdmV on Tue 19th Apr 2005 20:11 UTC
v OMG
by OMG on Tue 19th Apr 2005 20:18 UTC
altair:
by AdamW on Tue 19th Apr 2005 20:29 UTC

"You have to be the first person to implement the idea in order to get it so your reasoning is a little flawed."

That's what the law says, yes. Frequently it doesn't work that way. The U.S. PTO sucks at checking for prior art (frankly I don't think they even bother doing more than the most cursory of checks before granting a patent) so many, many patents are granted on things that had been done before. The only way to get these overturned is through a court case or by convincing the PTO to review the case.

v To all who think that a kingdom is bad....
by Brostenen on Tue 19th Apr 2005 20:36 UTC
for and against
by JJ on Tue 19th Apr 2005 20:38 UTC

Since I do HW & SW I find it to be somewhat strange they are treated so differently. I certainly have no problem with HW patents and all that entails, so I wonder why SW patents are so bad.

If SW gets patents, they should be vigorously challenged unless they are of the same general quality as most (but not all) HW patents, and in return SW consumers should have exactly the same rights when buying SW as HW. That is if its buggy, the SW vendor should be suffer the same fate that Intel did when it had the FPU division error a few years ago.

Any SW person that thinks they should be able to have both patents and the right to ship shoddy SW and EULAs is criminal.

In the future, the distinction between HW & SW will blur considerably esp with FPGAs in the system or SW runtimes that might be in SW or HW, and many aspects of HW can look decidely soft from the inside such as FPU, DSP algorithms. Its far more important to get the SW industry off the free ride its had since MS established the right to ride over roughshod over consumer rights.

Granting SW patents could be a back handed way to force SW industry in line with HW, a small price to pay for the reliability one expects of black boxes.

regards

JJ

v Sorry
by Brostenen on Tue 19th Apr 2005 20:39 UTC
When this goes through...
by the_leander on Tue 19th Apr 2005 20:59 UTC

And it will, just watch as the big US giants decimate the European hardware and software industries. I give it less then 5 years after this comes into effect before all but a very select handful of producers of both hardware and software are all that is left of the IT industry, with the rest litigated out of existance, or simply bought out.

I also have very grave doubts at OSS development when this comes in.

And yes, I agree with the earlier poster in saying that the EU is a corrupt sack of crap, anything that would allow Peter Mandelson into it cannot ever, with a straight face call itself anything but corrupt. I hope that the UK population has the intelegence to pull out of this monstrosity before it implodes in on itself.

re: How Software Patents Actually Work
by Raven on Tue 19th Apr 2005 21:29 UTC

This (http://wiki.ffii.org/SwpatAnim050418En) was one of the best and most informative animations i've seen on the EU patent case..

http://bitsofnews.com & http://tech.bitsofnews.com

My company wants to patent my software
by ac on Tue 19th Apr 2005 22:41 UTC

My company wants to patent some in house Linux software I wrote.

The story is that we are a Linux company have a new partner. We taught them a lot of stuff about our business and they went and started negotiations with another Linux company (our direct competitor). This a completely disgusting thing to do, but that's business.

We're obviously afraid that if they knew how our software worked they would just copy it and use our ideas for all their other partners. My boss thinks we should patent our software and sue them if they copy it.

To me that's fine. These guys are will absolutely try to screw us if we don't protect ourselves.

On the other hand, I'm opposed to software patents. Patents are meant to encourage people to write new software, but in this example they are only used to stop new software from being created.

In fact, software patents can only stop software from being written and can never encourage new software. In the open source world we love to write new software. This is why software patents are bad.

It would be wise to revist history...
by Saem on Tue 19th Apr 2005 22:57 UTC

I'm a little fuzzy on this, going off the top of my head. But basically patents were setup just like copyright in the 1700s. Basically, after 15 years, the monopoly ended. This was done to reward innovation and force others to find alternatives, ie. more innovation.

That's a good idea for the most part. Except, things we out grew it. Our communication and exchange systems evolved, dramatically. Money, goods and services could be exchanged much faster as time went on. The problem is we're at a point where things can be exchanged very fast, within less than a day, and I'm talking large items. The market sizes are not only huge in terms of capital, but geographic scope. This means an innovation, that is patented, can be used to make money faster than it could have been done even 5 to 10 years ago. Think about how far E-bay has come along during that time, it's huge, even in 5 years. Now, this has not only increased the rate of change of capital systems (economies) but it has done the same thing for intellectual systems, consider how much smarter you are just because of Google, Wikipedia or a specialty site like this one. You can learn at a much faster pace. Not only that due to modern day tools you can make things faster and cheaper as well.

This means innovations come faster and make more money. The problem is during all this while the monopolies given to the innovators have increased in time. It makes far more sense to reduce the amount of time a monopoly is given over an innovation.

But it doesn't stop there, our rate of information generation has left us in the mud when it comes to searching it exhaustively. We can't effectively find prior art. We can't validate patents. So searching for prior art is brutally difficult and expensive. The system is no longer able to work for us, it is not scalable. We need a replacement.

Not only that, talk to many venture capitalists. They won't invest in ideas easily. They want to invest in concrete things, if the inventor (think a garage inventor) doesn't actually implement things and try and get to a state where they can take it to market or be very close to taking it to market, they won't find any investment. So on an individual level it's very difficult to make money of such innovations. Not to mention barriers of entries of a lot of fields are rather high. Large companies are the primary benefactors of patents and copyright.

Now in particular, when it comes to software, it gets worse. There are generalities, like mathematics. You can solve entire abstract class of problems (data structures, algorithms, patterns) in software let alone specifics such as double clicking. It's basically impossible to differentiate, it all depends on the abstraction level you're using to describe it. Things change dramatically. Like mathematics software shouldn't be patented.

oss patents
by JJ on Tue 19th Apr 2005 23:00 UTC

I think the open source SW comunity is between a rock and a hard place, business model not even very strong and now may have to fight patent disputes.

However patents and physical inventions are old in our culture here to stay, SW just needs to be treated the same. The fact that there is not much open source hardware suggests something is odd here although there is a tiny free HW industry.

My self, if it were up to me I would grant substantial SW patents with option to strike them down as soon as prior art is brought forward, and further I would ask all those corps most eager to benefit to throw an umbrella over OSS and not be allowed to go after any non frofit use of patents or to grant easy licence. But that won't happen.

For instance if I invent some HW that infringes on a patent belonging to the company that supplies me the means to impliment idea (FPGAs), guess what, they don't sue because I am a customer even if invisible. That is their declared policy. Not all vendors are like that.

I would hope that IBM, MS, Sun & others who will undoubtedly acquire large nos of SW patents would not sue their own customers.

regards

Software patents are overly bad ...
by Darius on Tue 19th Apr 2005 23:02 UTC

They're just overly broad. Personally, I don't see a harm in granting patents for very specific technologies. For example, for whoever invented the mp3 codec, why shouldn't they be granted a patent on that? Not a patent on creating an audio codec, but a patent on creating this particular kind of codec. This rewards the iventory, and certainly doesn't prevent anyone else from creating their own codec - just not THAT codec.
Personally, if I spend a lot of time, money, and effort creating something new (not necessarily a program, but a codec, or new technology), the LAST thing I want to see is my idea implemented in some open source app a month after I release it, which seems to be what a lot of the open source crowd really wants - to leech off of other's hard work.

Change the patent system
by QuantumG on Tue 19th Apr 2005 23:28 UTC

Instead of complaining that patents are not suitable for software and demanding that the EU reject software patents outright, we should be telling our leaders how to change the patent system so it is more appropriate for software. For example, we could state that only peer reviewed novel algorithms could be patented, and we could reduce the term for which the patent is valid.

Methods to the madness.
by BR on Wed 20th Apr 2005 00:02 UTC

http://www.osnews.com/comment.php?news_id=10318&offset=30&rows=45

To quote a nun, he moos:

"You can't patent ideas. You can patent methods. While one could argue that a method is an idea, in legal language (which is what matters in this case) the two are quite different."

"One-click" is a business patent, not a software patent.



RE:Lumbergh (IP: ---.107.196.152.charter-stl.com
by BR on Wed 20th Apr 2005 00:08 UTC

"If something is truly innovative then I have no problem rewarding those that innovate."

Problem is that "obvious" is always obvious in retrospect. "Running current through a carbonized thread to generate light" sounds pretty obvious to anyone schooled in physics, or electronics.

RE: for and against
by Metic on Wed 20th Apr 2005 00:08 UTC

I certainly have no problem with HW patents and all that entails, so I wonder why SW patents are so bad.

Software and computer languages are just a very restricted universe. There's always only a very restricted amount of ways to do things, and it is not difficult at all to come to the same conclusions independently. Not so with hardware. So, software / programming is a bit like using notes to make music, and, on the other hand, instruments, studio equipment, record formats etc. would be musical hardware.

Patenting a radically new musical instrument might make sense, or patenting a new game like chess. But (in the case of music) allowing people to patent certain music forms or (in the case of chess/games) a new chess opening would be pure madness, just like allowing companies to patent double mouse clicks or "new technology" like this http://webshop.ffii.org/ indeed also is.

RE: Metic (IP: ---.pp.htv.fi)
by BR on Wed 20th Apr 2005 00:13 UTC

"Software and computer languages are just a very restricted universe. There's always only a very restricted amount of ways to do things, and it is not difficult at all to come to the same conclusions independently."

It must be, if the progress of computers and software are any indication.

RE:RE: for and against
by JJ on Wed 20th Apr 2005 00:35 UTC

I think you missed the point of what I said, SW patents of real substance equiv to any similar idea in HW deserve the same protections, there is no difference.

If there really is only a very few ways to do things, then that is or should be obvious to all concerned and is likely to be common practice ie unpatentable, these should also be simple to explain to a layman. The fact that we hear about grotesque violations of that doesn't meam SW patents are less than HW patents, those false claims should be fought.

Can anyone name one of the so called "few ways of doing something" that is actually non trivial. I bet an outsider could probably suggest an alternate approach in many cases.


Patenting user-interactions mouse clicks etc, xor cursor trick, anything that remotely looks like it came from a textbook etc make no sense. If the patent can be simply stated in a very few sentences as some can, its almost certain to have been already invented a hundred times.


A previous poster mentioned peer review, I like that idea,

BTW I have a HW patent from the EU even though I am in US for an algorithm that improves the throughput of a modem, yet the idea was implemented in SW for years before it could be turned into HW. Not sure if the patent covers both HW & SW implementations. If I had to do it again, it might well run as assembler on a DSP or embedded cpu, far more flexible if its fast enough.

I always like to bring up the point that the PC & most OSes are full of things that were once HW but moved into SW because the MMX/vector HW was fast enough to absorb it. So most all codecs are HW & SW.

Its gets a bit trickier for things you might think would never ever be in HW but possibly could. One example would be a language compiler, you might lough but I know of 1 ancient computer that included many SW tools built into real HW about 40yrs ago. More recently and again now I work on a cpu design that has the OS task scheduler in HW along with other usually SW components.

regards

JJ

Software patents a complex issue
by Miles Stevenson on Wed 20th Apr 2005 00:53 UTC

While Mr. Schaller is a skilled writer and presents his arguments well, I am not impressed with his knowledge of basic economics. I am glad that "I'm not telling..." previously corrected his misconception about the goals of an economy, which is central to Mr. Schallers' point of view. Throughout the comments so far, I see a lot of passionate posts from individuals who care about this issue, and many of them doing their best to make an informed opinion, which is difficult to do.

One argument that I have seen presented, is that software is already protected by copyright, which is a misconception. I quote from the USPTO's website here on copyrights:

"Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly."

The problem with copyrights as applied to software, is that copyright will only protect written SOURCE CODE. All developers know that the functionality of software can be easily expressed syntactically in virtually unlimited different forms as far as written source code is concerned. In other words, it is trivial to write two different sets of source code that do exactly the same thing. This behavior makes copyright unsuitable to protect the actual design, process, or idea that is expressed by a developer.

There have been a lot of examples given where software patents have been harmful and outreagous. Those instances are true, and certainly disturbing. But they ignore the instances when they are beneficial.

The reality is that applying patents to software is an enormously complex issue, even for intelligent people. In a free nation where hero's carve their names in history by the value of what they produce, and in so doing are given the freedom to own what they produce, we recognize the need to protect the man who produces for his own wealth against those that would seek to take it by force. But at the same time, there are instances where simple, logical ideas that are needed by developers to produce much of anything are being taken away from them, even if they thought of the idea on their own.

Yes, we DO need patent reform as applied to software, and I'm sure a great many other industries. This is a very complex area that needs bright minds that would rise to the challenge and come up with new solutions. But the U.S. government cannot, and should not, ever abandon the only mission that gives the government purpose: to protect the individual rights of its citizens.

I think peer review by software engineers might be a little unrealistic considering the sheer volume of patent applications, but it is a good start and a step in the right direction. An emphasis needs to be made in our judicial branch so that we can take these cases to judges who know software and understand the issues of the industry. We need technology to help us in new ways so that we can process the volume of patents in a timely way. We do need a new solution, but I certainly don't think abandoning patents all together is a good idea. Not only does such an idea rely on foggy predictions of its future benefits which are based on flawed economic premises, but it violates the very core principle that one of the most important purposes of the government is to protect individual men and ensure they have the freedom to own what they produce.

I urge anyone that might be reading this to be careful when forming your own opinion about this issue, whatever it may be. Specifically, please don't base your opinions on arguments presented by Mr. Schaller's article that attempt to illustrate the benefits of destroying software patents to the global economy. The reason I say this is that these theories are not based on solid, scientific economic theory. Don't make an opinion because you think it will "benefit mankind." The public, the common good, the "people", is a false idea. The "public" doesn't exist as some kind of unified entity. The public is simply a collection of INDIVIDUALS with their own opinions, thoughts, and lives. That is why this country is based on individual rights, as opposed to "collective rights". So ask yourself, how should software patents apply to the individual software engineers that produce the software?


@Miles Stevenson
by Lumbergh on Wed 20th Apr 2005 01:30 UTC

Great post. I get the creeps when people start talking about the good of the "collective".

Re: Software patents a complex issue
by AdrianRyan on Wed 20th Apr 2005 01:32 UTC

Well, thank you for that Mr. Stevenson; it was extremely insightful. As far as I can tell from all this, software patents, while they may now not work as they should, are pretty important. While open source is important in software, it is only one business model, and the ability to patent software (especially that which is truly original) is important to the other business models. Most of the arguments I have seen against software patents are actually arguments in favor of reform of patents. This seems to be the route that those who would not have patents on software should take: to stop arguing for a structure that will never come about and is idealistic and to begin arguing for a reform in what is a pro-monopoly system. In my experience (which has been mostly with local and state politics, but which I believe is representative of all politics), petitioning for reform is always better received by politicians than petitioning for the doing away with a system completely. Hopefully some needed reforms will then take place. However, reforms will never be achieved through arguing that the system must be done away with.

Democracy in EU
by dimosd on Wed 20th Apr 2005 01:36 UTC

Let's not fool ourselves, there's not really enough democracy in EU as it stands today. EU could be called a bureaucracy rather than a democracy. The problem is that the incentive for its organization is top down, from European governments and global corporations towards the people, rather than a genuine interest of European citizens.

There's lot of potential though and you can't scrap it (if you live in EU that is); the only way this is going to work long term is by strengthening people's decision power over the system and more importantly, fleshing out the European identity (what unites us culturally). (It's also possible that the whole EU idea is a sad joke set up by global multi-$$$ corporations in their own interest; this is how it mostly works today, anyway).

As for UK, it's “decorative” monarchy isn't the problem; the problem is that it can't decide (or rather that is has decided?) whether acting as a USA satellite (and picking the crumbles of the table) works better for it rather than fully participating in the EU project. Most EU countries except the core ones face similar dilemmas anyway.

As for software pantents... ok they suck, but if you're reading this you knew that already.

@Miles Stevenson
by a nun, he moos on Wed 20th Apr 2005 02:31 UTC

Don't make an opinion because you think it will "benefit mankind." The public, the common good, the "people", is a false idea.

That's an idelogical position, not based on any scientific theory itself but on a philosophical belief. As such, it is entirely valid to hold the opposite position, that there is such a thing as a common good, the "people" and the public. In fact, all of our societies are based on that very belief, even the good ole' U. S. of A. (who has quite an interventionist economic policy, by the way, through the Pentagon and through agricultural subsidies, including billions to the already-rich sugar industry).

Fundamentalists of free market theory arguing on these forums should remember that, without the notion of "common good", the Internet wouldn't exist - nor would civilization as we know it. Fortunately, the vast majority of people understand that, under the most hypocritical of populist banners, such right-wing ideologues only serve the interest of a privileged elite. This is why democracy is a good thing, for the will of the people is the only legitimate sovereign.

Software patents are legally and financially out-of-reach of SMBs and individual coders. They are in fact only available to large corporations, and serve not to foster innovation but as corporate defensive weapons. That is the reality. Now, perhaps they can be reformed so that they do not put SMBs or individuals at a disadvantage, but that would require some major overhaul.

It seems that pleas in favor of software patents almost invariably stand for the supremacy of the large corporation over the small entrepreneur, whether they admit it or not...

A Reference.
by BR on Wed 20th Apr 2005 04:58 UTC

"Software Patents Are Legally Questionable

It may come as a surprise that the extension of patent law to software is still legally questionable. It rests on an extreme interpretation of a particular 1981 Supreme Court decision, Diamond vs. Deihr.

Traditionally, the only kinds of processes that could be patented were those for transforming matter (such as, for transforming iron into steel). Many other activities which we would consider processes were entirely excluded from patents, including business methods, data analysis, and "mental steps." This was called the "subject matter" doctrine.

Diamond vs. Deihr has been interpreted by the Patent Office as a reversal of this doctrine, but the court did not explicitly reject it. The case concerned a process for curing rubber--a transformation of matter. The issue at hand was whether the use of a computer program in the process was enough to render it unpatentable, and the court ruled that it was not. The Patent Office took this narrow decision as a green light for unlimited patenting of software techniques, and even for the use of software to perform specific well-known and customary activities.

Most patent lawyers have embraced the change, saying that the new boundaries of patents should be defined over decades by a series of expensive court cases. Such a course of action will certainly be good for patent lawyers, but it is unlikely to be good for software developers and users. "

http://lpf.ai.mit.edu/Patents/against-software-patents.html

Patently a problem
by traveller on Wed 20th Apr 2005 05:19 UTC

The software patent boosters on the net here and elsewhere present the problem as software-patents and not-software-patents, a http://www.infidels.org/news/atheism/logic.html#bifurcation false dilemma. This is disingenuous. Software and the law are pure products of the mind and there is a universe of possibilities for protecting hard work with the current patent regime being only one of them. Please, think a little more deeply and honestly, and stop pretending that what we have is the only way and that software patents are obviously worthwhile when huge numbers of software creators are telling you they're not.

RE: @Miles Stevenson
by Miles Stevenson on Wed 20th Apr 2005 05:38 UTC

I will make one follow-up post to defend individual rights against collectivism, but I also don't want to disrepect the the purpose of this forum and stray too far from the subject of software patents. With that being said, if you would like to continue this discussion elsewhere, I would be more than happy to oblige. My email address is always included in my posts to this forum. Any other attacks against this post I will not respond to on this forum out of respect for keeping the topic focused. But I promise that I do read every flame I get. =)

You say that my position is simply a philisophical belief, not based on any scientific theory. But I say it is simply reason. Men rely on the power of their thinking, reasoning minds to produce and to survive. Our minds are individual entities. We are not connected like some autonomous Borg collective from Star Trek. Everything produced and achieved by mankind has been done by individual thinking minds. Yes, these minds can work cooperatively, but they are not a connected collective acting as one mind. We are not a colony of clones. We are individual minds with our own thoughts, choices, and ambitions.

When you speak of the "common good", as all socialists do, you blank out when it comes to the subject. The common good....for whom? The public interest...what public? By whose authority? I certainly don't recognize you or anyone else's authority to decide what is and is not in my best interest. When you say "the public good", when talking about abolishing software patents, do you mean that you are serving the interests of both small-time software engineers and large corporations? Are you serving the interests of theives? The only way "the common good" would ever work as a valid statement, is if everybody were the same, and the same were good for everybody. There is no "common good" because not all men are common. Some men are exceptional. Some men are evil. Some men are highly intelligent. Some are very stupid.

Observe that this notion of collectivism is probably the most fundamental difference between Capitalism (representing individual rights), and Communism (taking the rights of the individual, and turning him into a sacrificial animal to benefit the "society", which always translates to what ever group of individuals that those in power want to benefit).

You say that without the notion of "the common good", the Internet would not exist. I say you are dead wrong. I say that without the extroadinary achievements of the individual men and women who have developed technologies, written software, and corporations who have built coast to coast communications lines and satellites because they wanted to achieve, we would not have the Internet. You think AT&T and Bell Labs and IBM and all the men who worked for these great companies changed the world so you and I can chat on AOL? Do you think they put in their blood sweat and tears to build these great networks so you could say thank you? So your life is more convenient? Or do you think they did it because they love their work, they are brilliant people, and know that what they produce will build wealth for themselves?

You say civilization would not have been achieved without "the common good"? Observe which political system is responsible for building the wealthiest and greatest city in the world, New York City: Capitalism. Observe the national and horrific failure of every collectivist attempt throughout human history to build a civilization from "the common good", the most horrifying being Soviet Russia.

As far as patents being out of reach from individual coders, I emplore you to revisit reality. Not only can the personal bank accounts of individual coders not handle patent fees and legal fees, but they can't even handle the startup costs of a software company. But it's done almost every day. How? By those men who fuel our nations progress that the socialists despise: the businessman. Individuals that have a good idea, needs to patent, and is likely to succeed, attract INVESTORS to make it possible. What political system provides this? I'll give you a hint, it's slogan isn't "for the common good."

@Miles Stevenson
by Lumbergh on Wed 20th Apr 2005 06:15 UTC

Another great post. The smell of socialism permeates the air of many in the "no proprietary code, no patents, no copyright" crowd. And it stinks.

Another proposal
by clausi on Wed 20th Apr 2005 06:57 UTC

A good article. Thanks. The only minor flaw was the sentence about the goal of a functioning market economy. But it has already been pointed out by somebody else that its goal is the allocation of scarce resources.

However, the more I think about patents in general, the more I get the idea that its implementation is basically wrong. Take, for example, the fixed protection time of 20 years for each patent including administration about what a innovation is.

Thinking economically, this is a strange solution. The time should be determined on the likeliness of somebody else providing a technical solution for the problem at hand a priory.

For example, if I'd like to spend 100 Million dollars on finding a cure for AIDS, this is a major undertaking, according to our current knowledge, so 20 years protection is probably justified.

If, on the other hand, I'd like to spend 100.000 dollars on finding a way to let consumers buy with a single click, this can be easily invented by nearly everybody and it serves no real needs. Thus, a protection of 1 year or so is probably justified.

The problem with the sort of solution obviously is that somebody needs to make judgements about what belongs in each category.

However, a simple way to fix this could be by restricting the amount of patent applications granted each year: for example, x patents over 20 years, 2x patents over 15 years, 4x patents over 10 years, and 8x patents over 5 years. These patent application rights are then sold on a simple auction.

So, why not let the markets sort out what a valuable innovation is?

Since all companies are interested in protecting their inventions as long as possible, the price for 20 years protection will be much higher than the one for 15 years. Obviously, a company inventing the AIDS cure will be willing to pay that higher price while a one-click-shopping inventor probably will not.

This, however, assumes working financial markets since "at-home"-inventors of a cure for AIDS will need to borrow money from a bank to be able to buy a patent. That, in turn, means the bank must be able to judge if it's indeed an AIDS cure and not just rat poison. This won't work, obviously, because somebody from within the bank may run over to the big company next door to sell the innovation.

The fix is once more the state which will have to set up a sort of bank for patent appliers. Since selling of patents will result in lots of cash, this shouldn't be a problem. Thus, the system is nearly self-funding.

Advantages:

* Easier planning and thus better administration for patent offices, resulting in lower times to get a patent granted.

* Patents will be granted according to public interests measured by the predicted saleability of the innovator.

* Patents granted unjustified will have only a short time period impact, or are easier to detect since one just needs to look at the 20 and 15 years patents.

* The prices of patents will clearly signal the need of innovation, and thus makes it easier to plan research budgets.

* Worldwide patent granting rights can be made resalable, thus nations could buy these rights from, say, the UN, and resell them to or in their local countries. A banking system can take care about low income countries.

* Alternatively to the last point, the fixed number of worldwide patents can be distributed by a key (number of citizens, for example), and be made resalable - low income countries can then sell the patent grant rights to innovative countries, or directly to companies.

Of course, the usual rules about patents being granted should still apply (no prior art, etc.).

Comments welcome.

Patents resemble the cold war
by Albert on Wed 20th Apr 2005 07:36 UTC

I always thought that the patent portfolio standoff among the big companies very much resembles the cold war. Each of them has an extensive arsenal and one strike between two big players may well degenerate into a full scale war in the courts which would leave them all seriously damaged.

That's why the big players are wary of actually using patents, yet they feel the need to stock up ammo. Hopefully, just as the cold war eventually came to an end due to a higher understanding between opposing powers, so will the software patent standoff.

The resemblances with the cold war keep going. The big players aren't wary of using their arsenals to frighten the little people into submission; the entire situation has huge political and social ramifications; the ordinary people and employees live in fear of tomorrow, when the patent bomb mushroom may bloom on the horizon.

A note to Miles Stevenson's remarks
by clausi on Wed 20th Apr 2005 07:48 UTC

While you are obviously a skilled writer, too, and althought I agree that there is no "public" as some kind of unified entity, please note some rights should be granted to everybody.

This is, as far as I know, one of the basic ideas about the constitution of the United States of America: for example, the right that everybody should be treated equal by the law, and protected from the power of the state.

Thus, to be granted to right to have access to knowledge, and to use the knowledge independently of your personal circumstances, is in the individual interest of everybody.

Since software patents are about granting a restricted monopoly about an, in your own words, "actual design, process, or idea", this is a serious conflict with everybody's basic interests to use existing public knowledge, and improve his or her own wealth by doing so.

Additionally, the term "public" is justified for all situations where individuals are unable to coordinate their individual actions against a threat to all of them because its in the individual intrests of everybody not to act.

This, for example, holds for all kinds of government oppression, and as far as I know this is also one of the basic ideas of the constitution.

Thus, I'd like to urge anyone reading Mr. Stevenson's remarks not to fall into the trap of thinking that all problems can be solved by granting rights to individuals. His arguments about software patents are certainly such a trap.

@Miles Stevenson
by Christian Schaller on Wed 20th Apr 2005 07:59 UTC

First of all I never considered myself a socialist, in fact I been a member of the my homecountries conservative party for many years.

My claim in the article is, and you have said little or nothing to refute that, that it benefits the inventors and businessmen more to have a system without patents than it does to have one with patents, and I think I brought up a lot of examples of why this is true.

The IT industry was from the start without software patents, it thrived exceptionally and it rewarded people exceptionally. I doubt you will claim that inventors and smart businessmen have suffered horrible in the IT industry due to this. Could many of the shortcomings of the software patent systems be addressed through reform, maybe, but I think before we consider that option there should be some clear evidence showing that it actually spurs economic development in the software sector more than not having them.

politcians
by tlc on Wed 20th Apr 2005 09:48 UTC

You know, when I don't show up at work, I'm fired. Why is that not the case with those parlementarians?

Excuse me, but you are incorrect on the point that copyright is not suitable for protecting software.

Copyright indeed protects the text itself (the source code, in this case). However, it doesn't only protect against copying, it also protects against the creation of derivative works.

You claim it is trivial to write two different sets of source code that do exactly the same thing. That is misleading: it might be trivial to adapt sourcecode into other sourcecode that does the same thing, but that is protected by copyright. Copyright (in contrast to patents!) allows the independent creation of code that effectively does the same thing - but that is far from trivial.


On the topic: I agree there should be a directive on software patents. However, this directive should prevent abuse of software patents. In the first reading, the European Parliament did a pretty good job on adding such safeguards - unforatunately those were flat-out dismissed by the Council. I am *strongly* against the current form of the directive, as it allows for outrageous abuse.

@ac
by raboof on Wed 20th Apr 2005 10:53 UTC

The story is that we are a Linux company have a new partner. We taught them a lot of stuff about our business and they went and started negotiations with another Linux company (our direct competitor). This a completely disgusting thing to do, but that's business.

We're obviously afraid that if they knew how our software worked they would just copy it and use our ideas for all their other partners. My boss thinks we should patent our software and sue them if they copy it.


First of all, your inventions must be really novel (not yet `state of the art') to be patentable.

Even if they are, though, in Europe, unfortunately, patents won't help you here. You should have made proper Non-Disclosure Agreements before discussing these things. Since you appearantly didn't do that, by talking about it, you made the information part of the `state of the art'. In order to apply for a patent, the thing you want to patent must not be part of the `state of the art'.

In America, I believe there is a 1-year `grace period' in which the inventor himself is free to publish the invention without damaging his ability to apply for a patent. I'm not into American patent law though, so I can't really say anything more about that.

@Miles Stevenson
by The Badger on Wed 20th Apr 2005 11:33 UTC

Enough with your retro-style presidential addresses! I note that whilst those against software patents can come up with concrete arguments against them, the pro-patent lobby can only provide vague and verbose statements loaded with economic buzzword phrases like "the right to innovate" and "rewarding inventors". Or in your case, Stevenson, a combination of faux-libertarian and "this great nation" hyperbole... from the nation that produced Enron.

@clausi
by The Badger on Wed 20th Apr 2005 11:39 UTC

"For example, if I'd like to spend 100 Million dollars on finding a cure for AIDS, this is a major undertaking, according to our current knowledge, so 20 years protection is probably justified."

Oh yes, with those inflated drugs prices, well out of reach of the third world, I guess the drugs company concerned just put a price on the millions who would die because of that monopoly - a monopoly possibly stolen from the commons anyway, given the amount of basic research going on in academia that it would draw from.

But hey, got to think of that share price...

@Michelle of the Resistance
by The Badger on Wed 20th Apr 2005 11:46 UTC

"And i suppose living in a monarchy like the one in your country is a better example of democracy? The only thing stopping the EU from becoming better is the UK constantly dragging their feet."

Yeah, right! Anyone who considers the EU to be some magic box that dishes out free money might take that view out of ignorance, but you can't honestly have been following the software patents process and still believe in some kind of European vision unless you were cheering in the Nokia, Siemens and Microsoft camp from the sidelines. It's been a real eye opener.

"If you don't want to be part of the EU then don't, it would be a lot better for the rest of us not having to constantly negotiate and compromise everything with the UK."

Try getting France to agree to an agricultural subsidy reform - that's possibly the most significant obstacle to any kind of financially well-managed EU that doesn't have its finger taped to a button that reads "screw the developing world".

"As for software patents they are very bad."

Glad you agree! But don't let the "visionaries" blind you to the real state of European democracy.

If my tax dollars pay for it.
by ? on Wed 20th Apr 2005 12:19 UTC

If my tax dollars fund that AIDs research, the god damn pills you make better be cheap (at least to the country who developed them.)


It's amazing that drugs are cheaper in Canada when my USA tax dollars pay for their development and research.

@ The Badger
by clausi on Wed 20th Apr 2005 12:53 UTC

The example about the need for a cure for AIDS was just that - an example. If you think, this special situation needs a international tax-funded research agenda, talk to your politicians about it.

It has nothing to do with thinking about alternative ways to grant patents, except being a potential example.

Lazy hysteria on this topic as usual
by JP on Wed 20th Apr 2005 14:28 UTC

<<
...sorry, the last link I mentioned above didn't work.
So, the official US patent concerning double clicking (etc.):
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITO...
>>

OK. Let's take this example. The claims determine the actual effect of a patent. Have you read the claims?

Some questions for you. Does this double click even have a mouse? Does this double click apply without first depressing an "application button" for an extended period of time? Oh well . . . why bother with facts when it is so much more entertaining to just slander a patent examiner?

I am no fan of Microsoft that's for sure. Also, there were some bogus U.S. software patents granted long ago; however their collection of software "prior art" has long since been greatly improved and very few such errors occur for a long time now. Before just slamming people, even if its people we "love to hate", you should at least read up on how the patent system works today and try to find legitimate examples . . . IF YOU CAN.

And, btw, IF YOU CAN there is a process of throwing them out. Use that process if you want a patent thrown out. You have lost credibility with me on this topic because I did take the time to read through your first example and I find it totally bogus.

We should all double look in the mirror before making accusations. Fear not, your privilege to do so has not been patented.

Find the correct maxims and you see it
by Sledgedog on Wed 20th Apr 2005 14:42 UTC

This is not about communism (FLOSS and non-swpat crowd) against capitalism (swpat crowd), but free markets (non-swpat crowd) against schoolbook fascism (swpats).

I ask you to not report this as off-topic or abuse, because this has nothing to do with any street-fascism that uses violence to control opinions and thoughts, and so this is not name-calling if you get this correctly.

I find comparing the non-swpat crowd to communists abusive and misleading. Maybe I'm just returning favor, but I believe I'm bringing on a much more correct and important point of view.

FLOSS developers are not leeches. They are working hard from the common pool of knowledge (the elusive state-of-the-art) that - just like mathematics - cannot be owned. And they improve the pool as they go. Unless sw patens become law and the pool gets owned by force.

Patents are about stopping someone from doing work or achieving something. Free markets (non-swpat) are a marketplace where you cannot stop your competitor. You can do the trouble to design a good product, and seeing what it does, your competitor can do the same.

People talk about "the patent mafia" for a good reason. Patents are weapons, and patenting software will bring on endless turf wars. This makes the streets unsafe for everyone except the strongest players, thus completing the analogy.

To make the analogy even more complete, we have the gun pushers (lawyers and the patent office).

Now fascism is about the government and corporations together owning the population. Patents are about the strongest players together owning the industry. This is what has been clearly seen in the European discussion. Now it is all about using (political) force to bring on the desired outcome.

A very, very, very important point about patents. Those things were intended to be patentable that would have otherwise been trade secrets, thus being away from the public. Patents _were_ about giving a limited-time monopoly to the corporation in exchange for making the information public.

Most software patens have zero public benefit, and the "information" that the company "gives up" to gain the monopoly is often trivial and AFAIK, never unique or exceptional.

@JP
by Christian Schaller on Wed 20th Apr 2005 14:44 UTC

Your claim that there is a process to throwing out bad patents is misleading. You are allowed to submit documentation and prior art to the patent office and request a re-evaluation. But you have no promises or guarantees that the person reviewing the documentation you send in is qualified to do so, or any guarantee that the patent office will actually perform a re-evaluation. Its fully up to their own discresion if they do so or not.

And yes you can take the case to court, but patent cases are very expensive, and if you need to have 4-5 different patents all found invalid you better be Bill Gates little brother to be able to afford it.

RE: @JP
by Metic on Wed 20th Apr 2005 16:35 UTC

Exactly. Good, points C.S.

JP, what's your point? The patent example that I provided:
1) had some mambo jambo (text) that might not be exactly and only about double clicking per se (because probably even USPTO wouldn't be stupid enough to accept that?) but it was about time-based etc. clicks anyway, so basically about the same thing, nothing more innovative than that.
2) It was just one example of the many that I provided. Did you read all the other ones too? Here are the links to the other patent examples once more:
http://swpat.ffii.org/patents/samples/index.en.html
http://webshop.ffii.org/
http://www.oreillynet.com/pub/q/patent_list
Now, explain to us, what was the idea when USPTO (or the European equivalent) accepted patents like those?

Basically most software patents tend to be rather vain and worthless from the point of view of research and development. The nature of software is such that it is just very difficult to find reliable and good enough base for software patents. That is why the software patent world has become such a surreal and dangereous legal mine field.

As to the EU, the democratically elected European Parliament, after consulting lots of legal and IT experts did make a very well founded proposal for acceptable software patents. But the Commission, after having been consulted by a few big IT corporations, didn't want to accept that. Oh no, they want USA style unrestricted software patents instead, because they seem to give a shit about democracy and value their rich corporate supporters behind their backs more.

So, the discussion in the EU is not so much about either having too broad software patents or no software patents at all, but about who makes and influences these kind of decisions. Is EU a democratic Union where democratically elected parliament members have the last word, and where the decision makers listen to all parties and experts? Or is the EU just a tool that corporations use to increase their power or even monopolies and to kill honest healthy economic competition?

Like someone said above, also the whole patent system as a whole might need repair. For example, farmers in the developing 3rd world countries have often opposed the western patent system because it makes it all too expernsive for them to use the same advanced patented means of farming or even individually develop similar means to improve their condition. They often see the patent system as means of the rich western companies to colonialize the poorer countries and the 3rd world companies. The same in IT.

@Miles Stevenson
by A nun, he moos on Wed 20th Apr 2005 17:41 UTC

This is getting dangerously off-topic, but I'll respond anyway.

You say that my position is simply a philisophical belief, not based on any scientific theory. But I say it is simply reason. Men rely on the power of their thinking, reasoning minds to produce and to survive.

Indeed they do. However, it is fallacious to conclude that the position your propose is the natural outcome of reasoning, since opposite positions are also achieved through reasoning. The fact is that two people can reason and still come to different conclusions. Your position, on the economic left/right axis, would be to the right, while mine is on the left. At least we agree on the libertarian/authoritarian axis. Simply put, your ideological position is libertarian/right, while mine is libertarian/left.

Our minds are individual entities. We are not connected like some autonomous Borg collective from Star Trek. Everything produced and achieved by mankind has been done by individual thinking minds. Yes, these minds can work cooperatively, but they are not a connected collective acting as one mind. We are not a colony of clones.

Nobody is arguing this. If you are claiming that this represents my position, then I'm sorry to say that it's a textbook strawman argument.

When you speak of the "common good", as all socialists do, you blank out when it comes to the subject. The common good....for whom?

For the greater part of the population. This is the same argument used to defend democracy: of course democracy does infringe on the desires of monarchs, and yet it does serve the common good.

You say that without the notion of "the common good", the Internet would not exist. I say you are dead wrong.

Unfortunately, I am not. The Internet was first a government-sponsored project, financed with taxes paid by the citizenry to provide a resilient network that would help defend the country, i.e. the "common good."

I say that without the extroadinary achievements of the individual men and women who have developed technologies, written software, and corporations who have built coast to coast communications lines and satellites because they wanted to achieve, we would not have the Internet.

Sure. The probelm with your reasoning, which is common among free-market ideologues, is that they present the individual and the community as an exclusive dichotomy, i.e. either you defend individual rights or collective ones. The truth, however, is that there is no such dichotomy. A community is composed of individuals, and it is possible to benefit both. I suggest you read up on game theory for some examples of this.

Put another way: I, as an individual, benefit from the "common good" such as education, health care, unemployment insurance, and the military. Infrastructure stuff. There is such a thing as "the public", though I prefer the term "citizenry" which in my view is more accurate. There is such a thing as "the common good", and only right-wing ideologues believe that such a concept is incompatible with individual rights.

You think AT&T and Bell Labs and IBM and all the men who worked for these great companies changed the world so you and I can chat on AOL?

These companies wouldn't have changed anything if it hadn't been for tax dollars funding their research. The Internet is not a product of capitalism, but of government programs.

You say civilization would not have been achieved without "the common good"? Observe which political system is responsible for building the wealthiest and greatest city in the world, New York City: Capitalism.

That would be great if true, however as I've mentioned before the U.S. is actually quite interventionist in its economic policy, injecting billions of tax dollars to help flagging industries, or jumpstart new ones. Despite what you say, the U.S. isn't a capitalist country, at least not in the classical sense: it integrates elements from such diverse sources as Marx and Keynes (more from the second than the first, obviously).

Another problem is that, if what you were saying was as simple as you present it, then there wouldn't be any economic problems in the U.S. However, as the Economist recently pointed out, this is far from the truth. In fact, the U.S. is in fact in a precarious economic situation, and has been in perpetual crisis management since the 70s.

The main problem I have with right-wing ideologues is that they'll refuse to acknowledge simple historic realities, i.e. the fact that, if let to its own devices, "pure" capitalism will lead to two very bad things: class struggle and disastrous stock market crashes.

Observe the national and horrific failure of every collectivist attempt throughout human history to build a civilization from "the common good", the most horrifying being Soviet Russia.

Any absolutist philosophy will result in disaster, whether its capitalism or collectivism. However, economies that combine elements from each are not only healthy, but more resilient, and their standard of living is often higher than what you'll find in U.S. Examples abound, with Canada and the Scandinavian countries being prime examples.

Meanwhile, even countries that call themselves communist can have booming economies: China and Vietnam are prime examples. The case could also be made of Cuba, which has survived an economic embargo for decades and can still afford free education and universal healthcare. The illiteracy rate is actually higher in the U.S. than in Cuba!

Now, to stay moderately on-topic:

As far as patents being out of reach from individual coders, I emplore you to revisit reality. Not only can the personal bank accounts of individual coders not handle patent fees and legal fees, but they can't even handle the startup costs of a software company.

That's a fallacious argument. The startup cost of a software company represent an investment, i.e. you get something from it. Researching patents, and actually applying for one, represent huge legal costs - tens of thousands of dollars for a single patent. Patent litigation can cost millions. This is clearly geared towards large corporations, and will simply shut out SMBs and individuals out.

Funny how right-wing ideologues are always ready to defend individual rights, except when those individuals have to go against large corporations. Herein lies the inherent hypocrisy of free-market theories. While they all praise the "level playing field" that free markets allegedly provide, the truth is that the accumulation and concentration of wealth guarantee that the field will never be even, but always tilted towards the larger, richer corporations.

This is the reason why software patents, far from being tools to promote innovation, are actually business weapons for large corporations and - if implemented - would in fact prevent innovation and severely limit the chances of small entrepreneurs and individuals. This, in turn, undermines the basic argument that right-wing ideologues use to sell the free-market sham, i.e. that it promotes the age-old "american dream" where you can make it big if you have good ideas and are ready to work hard.

As usual when dealing with the propaganda pushed forth by the corporate elites, the reality is quite different from what they would have us believe.

@Miles Stevenson
by John Nilsson on Wed 20th Apr 2005 18:17 UTC

In your reasoning then:

Why should _I_ (as a member of the state) grant _you_ (as a software developer) a monopoly?

What is the bagain?

What's in it for me (and the other members of the state)?

@ Mike S
by I'm not telling on Wed 20th Apr 2005 19:54 UTC

Observe which political system is responsible for building the wealthiest and greatest city in the world, New York City: Capitalism.
How on Earth do you come to a statement like this as some sort of objective truth? New York is certainly not the largest city in the world. I doubt that land value of New York exceeds the land value of Tokyo. As to 'greatest', how does one say that New York is 'greater' than Shanghai, Moscow or Delhi, or Sao Paulo? (All of which have 2 million or more people than New York.) It seems to me that using New York as the examplar of why the world should adopt the US's ideology de jour is rather provincial. If someone were to determine that Shanghai has become 'greater' than New York, are we all to consider changing to the sort of economic and political structures found in China? Should we then decide that Confusanism is an economic virtue because is it common in 'the greatest city on Earth'?

This does apply to patents and IP protections. In our (USA) past, we had much weaker protection of IP that we do today, particularly if the owner of the IP was not a US citizen. If a student of history were to advise developing nations, she might well advise them to copy the policies that US adopted; but she might advocate the weaker protections of the late 18th and early 20th centuries (when the US was industrialising rapidly) rather than the current policies of the US. Perhaps a developing nation should advocate something like a seven year patent and a seven year copyright, which is more along the lines of our Founding Fathers.

Please remember that IP law is used to establish monopolies. This is very nice for people that want to use some idea or expression to make capital, but it not a free market. So, are you a free market capitalist, or a 'I earned/inherited it, so can do what I damn well please with my money' capitalist? These are both widely help views, but they are quite distinct. It is not reasonable to call the later a free market capitalist, since they routinely attempt to subvert free markets when they can better profit by establishing a monopoly. There is no clearer way to recoginize this distiction than to note how the length of a copyright has been growing. For all practical purposes, anything copied after 1923 has been granted a permanent monopoly by our (bought off) politicians acting on behalf of a few major multinational corporations. How is this an example of a free market?

@I'm not telling
by A nun, he moos on Wed 20th Apr 2005 21:25 UTC

Please remember that IP law is used to establish monopolies. This is very nice for people that want to use some idea or expression to make capital, but it not a free market. So, are you a free market capitalist, or a 'I earned/inherited it, so can do what I damn well please with my money' capitalist?

This is actually a very good point. A monopoly on a method, such as the one granted by a patent, is actually a restriction on the free market. In a true free market, you'd be able to use a method developed by a competitor without restriction. So in fact patents are by definition a protectionist measure, which requires the direct intervention of the state. It's strange that free-market ideologues would support software patents, as doing so is in fact endorsing an artificial limitation imposed on corporations (save one) by the state...

RE: not just software patents
by A. Nony Mouse on Thu 21st Apr 2005 11:52 UTC

"The inventors of common flying systems (flaps, ailerons, joy stick) used today in all aircraft – first got into the air by “stealing” the Wright Brothers basic wing design and wing warping methods."

Actually Richard Pierse invented moving control surfaces (and flew them, sorta) three years BEFORE the Wright brothers.


On patents generally, IP attorney Stephan Kinsella is a must-read: http://www.stephankinsella.com/ip/

[Aside, re Miles Stevenson: reason is good, but your reasoning is inconsistent. Hans Hoppe has a proof that true free-market (anarchist) capitalism is the only position consistent with reason, peace and freedom (google for "On the Ultimate Justification of the Ethics of Private Property"). Patents are facist and anti-capitalist]