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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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authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished.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?