Your points are well taken. I can see there is room on both sides of the issue, I just happen to find more evidence for the other side, against software patents. True enough, there are some really bad patents being issued and once they get issued, they become a baseball bat waiting to be used and abused. On the other hand, I suggest based on the news I’ve read surrounding trade agreements and organizations, small countries wishing to trade with the 1st world are being told to adopt patent systems or look elsewhere for opportunities. That is sort of like peer pressure. If patents were so great, no pressure would be needed.

As to big vs small, if large businesses can’t patent ideas that amount to very large land grabs, then small businesses can’t either. That will even out the playing field. Even if a small company comes up with something truly novel, they will have the first mover advantage. Patents seem to help incumbents more than newcomers. Why? Incumbents have the money to fund teams of attorneys. Without patents, incumbents could try to copy ideas, but if something is truly novel and different, it’s not going to be easy to for a large company to move fast enough to take away that first mover advantage. Sure, they can copy the idea, but they can’t copy the thinking behind the idea.

Here’s an interesting quote from the Foundation for a Free Information Infrastructure (http://press.ffii.org/Press%20releases/Economist%20Critic%20of%20Software%20Patents%20gets%20Nobel%20Prize):

The FFII calls on the Commission to finally acknowledge the insights of people like Prof. Maskin and abandon its naive proliferation policies: “How much more proof is it needed? If IT professionals, economists, and entrepreneurs – and now even a Nobel laureate – agree that software patents are bad for business and innovation, the Commission should take the hint and act to abolish software patents.”
[end quote]

So a Nobel Prize winning economist is critical of software patents? And he’s just one guy. There are many, many others out there. The only reason Red Hat is getting software patents is to protect against other software patent holders, like Microsoft. If no one could get software patents, Red Hat wouldn’t need them. As James Bessen and Robert Hunt have noted in their own study commission by the Federal Reserve, software patents tend to replace R&D at the firm level. And they have documented a steady decline in R&D over the last twenty years. Money spent on prosecuting patents is money that could have been spent on R&D.

Like I said, if software patents really spurred innovation, I’m not seeing it.

Both from a moral and a legal standpoint, but certainly from a legal standpoint.

Why is it so difficult for you to understand that those who write software for a living or have a small software business absolutely need to have software patents. It is a form of insurance. Without any software patents they are targets. With software patents they are not to be messed with because if they have their own portfolio chances are that others are infringing them, so they don’t get sued. Software patents provide small businesses with insurance, and allow them to continue to innovate.

You might not like this, but that is the way it is. You also might not like software patents on any level, but the reality is there is plenty of extremely new and non-obvious software that deserves protection. There is no reason to throw the baby out with the bath water, although the USPTO could and should certainly get better at examining these patents moving forward.

One last thought. The trouble is not software patents, it is the crap that gets issued to the large corporations. It is easy for a large corporation to get a crappy patent issued, and very difficult for an independent inventor or small business to get even legitimate innovations patented. That is the far bigger story. I don’t disagree that there is a lot of crap out there, but arguing that software patents should not exist because Bill Gates says so is to turn a blind eye to Microsoft’s motivation. They don’t want patents because they don’t need them and if others get them they could be used to hold up Microsoft from copying and stealing. It is a self serving position that continues to insulate their monopoly. This, among other reasons, is why Red Hat and others are pursuing patents. They might not like it, but they are smart enough to see the need to have them or be walked over. More business savvy enterprises also see them as a means to gaining market and increasing innovation.

-Gene

The bottom line is that patents are being used to consolidate power, not to advance innovation. Software patents look like a fresh land grab to me. The question has, as another poster has put it somewhere else, moved on from “should software be patentable?” to, “are software patents good for society?”

I think not. Books like “Patent Failure” and “Math You Can’t Use” to illustrate the point well. Even Michael Heller has shown the damage done in the Tragedy of the Anti-Commons.

Are you arguing from a moral standpoint or a purely legal standpoint? It’s really hard to tell.

Scott

I am growing very tired of this nonsense. I refute everything you say with facts and yet you claim I am attacking you rather than what you say. It is clear you know nothing about this area, yet your lack of knowledge has not stopped you from saying things that are provably wrong over and over again. It is impossible to debate someone who does not have any knowledge or experience themselves, particularly when that person is willing to blindly buy into the lies spewed by others.

Everything you have said is wrong, and I have proved to you that it is wrong. Your continued decision to rely on misinformation presented by those with an agenda and those who lie to forward their agenda is curious and demonstrates that you have your own agenda and have made up your mind to not allow truth and fact to get in the way of believing what is clearly incorrect. There is no point discussing with you any further. I have exposed your position and how you repeatedly rely on fiction. Once that is accomplished my objective has been met. Those who wish to follow you or those you cite are more than welcome to continue to believe lies.

-Gene

I said you were the expert. I never said I was an expert. I was simply relaying what I know as someone who made an effort to make himself familiar.

Attacking my credentials is easier than attacking the sources I’ve cited, I guess.

Scott

You should also take a look at this article by Chuck Connell, which explains exactly what software is and why it is patentable.

http://www.ipwatchdog.com/2009/06/15/is-software-patentable/id=4130/

-Gene

It is amazing how you have all of the sudden turned into an expert on patent law, patent history and the evolution of patent law. Earlier in this chain your ignorance was shining through and demonstrated to everyone that you were telling lies to suit your own agenda, knew nothing about the law, know nothing about patents and your continued bolstering of Kinsella is ridiculous. He is a patent attorney who hates patents. How can someone like you wrap yourself around the flag of someone who is spews such nonsense while at the same time not being committed enough to find a new line of work? Very interesting.

Microsoft doesn’t like software patents because they are tired of having to pay when the rip off small businesses and independent inventors. Why do you continue to ignore that truth and simply never address it?

Thanks for the Groklaw reference. Months ago I proved that was completely wrong and wholly untrue. See:

http://www.ipwatchdog.com/2008/12/15/computer-software-is-not-math/id=1040/

This is hardly fun or interesting when it is so easy to expose your lack of knowledge, faulty logic and ignoring the overwhelming evidence that supports the exact opposite of your positions.

-Gene

Given that the price of freedom is eternal vigilance, how patent rights should interact and exist side by side with property rights should remain an open question. Anyone familiar with the history of patent law knows that what is allowed to be patentable has evolved over time. Although Congress never explicitly permitted patents on software in their legislation, courts have made interpretations to try to resolve the issue. The evolution of the patent law in the courts and Congress has evolved a patent law that has proven to be an arbitrary and confusing area of law even for experts in the field. Kinsella has much to say on the arbitrary nature of patent law.

With property rights, the limits of those rights have a bright line – I know where my property begins and ends. With software patents, where you draw the line is an open question. Rob Weir of IBM wrote an interesting piece on this subject called “Metes and Bounds” (http://www.robweir.com/blog/2008/02/by-metes-and-bounds.html), where he demonstrated how hard it is to figure out where software patents end and other rights begin. The language in software patents is so broad and general that it’s hard to know if code is infringing without doing a patent search. We have more than 200,000 software patents here in the US alone. This is alternatively known as a “patent thicket”, difficult to navigate without getting pricked. This patent thicket has given rise to patent pools and defensive patents.

Is that the innovation you speak of? At least with property rights, I have a clear understanding of what is mine, what I can use and what I can do with it. Life is not so clear with software. For a business with inside developers, coming up with new ideas to solve problems every day, and implementing them, the owner has no way of knowing for sure if he’s not infringing on one of those patents. If he wants to develop software and distribute it, he’s much more likely to be the victim of a shakedown lawsuit. You know, “just pay us the royalties on patents of questionable value and nobody gets hurt,” is the strategy for a quick settlement.

Even that great bastion of innovation, Microsoft, has severe ambivalence towards software patents. Their thinking seems to be along the lines of “I could use software patents to hobble or wipe out GPL software, but I get sued every year over patents.” That sounds really innovative.

Check out groklaw.net for an article that clarified the issue of whether or not software should be patented. The basic premise is that all software is math. Since math is not patentable, neither should be software. You can read it here: http://www.groklaw.net/article.php?story=20091111151305785.

So, unless you can patent math, you’re going to have to lobby for enabling legislation.

Scott

I never said freedom was free. Free software is free as in freedom, not beer. Red Hat has a proven model of providing free software and charging for support. VMware does something very similar. They give away a basic product that is functional in the enterprise and charge for support when you get into a situation beyond your skills and means.

Freedom is never free. We both know the costs of freedom. Vigilance. Lots of it. Okay, in some cases, that could include attorneys fees, but you get the idea.

I just happen to believe that patents infringe on freedom. So how do patents reconcile with property rights?

Thanks.

Scott

One more thing. Why would anyone question how patents coincide with basic property rights? All property rights exist only to the extent the government recognizes them. That is no different than patents, copyrights or any other form of property right recognized by the government. You certainly realize the government can take your property whether you like it or not, right? (i.e., eminent domain) And in communist countries there are no property rights to speak of, at least that are stable. Government controls all property rights of every kind, in the US we just have a different idea of what is appropriate.

-Gene