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Talk:Why abolish software patents

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[edit] Patent thickets

What about the fact that nobody will be able to develop software, if they got a patent to "protect" their idea, at all because of the thousands of patents owned by large companies (such as IBM or Microsoft) which used in that software if they tried to deny them?--94.98.37.115 04:43, 5 August 2009 (EDT)

Yup, sounds worth adding. Ciaran 08:40, 5 August 2009 (EDT)

[edit] Burden of proof

I see my addition to the list has been edited. The excision of the majority of the harsh but entirely fair¹ and accurate contextual latter half of the first sentence rather guts it IMO. Okay - it's your list - but “historical status quo” is poor English. Similarly, the “properly” in the second sentence has been replaced with “morally”, reducing the strength of what was the moral *and* material anti-fallacy² core of the argument by half (at least). The added “For example...” question is almost a good _counterexample_ of the kind of question that the argument preceding it suggests should be asked. It positively invites an anecdote fight!

  • ¹ Generously so given what the Pat. Est. has been getting up to since before the CII Directive.
  • ² Shifting the burden of proof has been a (if not the) major achievement of the pro-swpatters.

(above comment unsigned)

Well, I edited it but I am not any official part of en.swpat.org, so blame me not them. Here is your original version:
* Arguments /against/ software patents really shouldn't even be necessary and the anti-software patent side should not allow itself to be forced into a defensive position simply because an insidious economic quackery has dominated patent system policy and practise historically. The burden of proof properly rests entirely upon the shoulders of software patent defenders and advocates: the only acceptable justification for the (often appalling) negative ethical and economic consequences of patent eligibility for software would be evidence demonstrating that it substantially increases technological progress and economic and social welfare despite the harm it does.
And here is mine:
* Arguments /against/ software patents really shouldn't even be necessary and the anti-software patent side should not allow itself to be forced into a defensive position simply because of the historical status quo. The burden of proof morally rests upon the shoulders of software patent defenders and advocates. The only acceptable justification for the negative ethical and economic consequences of patent eligibility for software would be hard evidence demonstrating that it substantially increases technological progress and economic and social welfare despite the harm it does. For example, given equal starting points, does an author who fails to patent their software suffer economic hardship, while an author who does patent their software fares better?
I tried to tone down the most colorful language because the appearance of ranting tends to be counter-productive, no matter how true and deep the underlying situation may be. Also, I try not to use many words where one will do. I changed "properly" with "morally" basically to achieve what you complain about - I do not think that material considerations mean a darn thing without the morality to back them up, i.e. it is the morality that makes material aspects matter here. As for my example, well if this cannot be answered effectively then what are we all doing here?. Having said all that, I won't stand in your way if you edit/revert as you see fit - I'll let the site admins do that ;-/ steelpillow 10:51, 7 August 2009 (EDT)
Thanks for your response. Of course you are right that it wouldn't do to appear to be merely ranting, and for a 'general' audience one certainly ought to elaborate the case before describing it as a history of insidious economic quackery. But that is exactly what it is and it is not difficult to show that it is: the parallels between recent patent system policy and practise (and arguments in defense thereof) and quackery are striking and strong.
Unfortunately, replacing “properly” with “morally” does indeed achieve what I'm complaining about ;-) - there are those who take a predominantly moral stance and those who take a predominantly materialist or pragmatic stance and emphasising one viewpoint at the expense of the other when an argument applies to both is shooting oneself in the foot IMO.
Your example seriously undermines the argument I have put forward. It is exactly the kind of question that should be avoided precisely because it cannot be answered effectively - at least not on its own terms. It is anecdotal in nature and both sides have a supply of anecdotes, but only one side's arguments have strong support beyond the anecdotal (ours). Would the EPO et al wilfully have ignored the economics and even deliberately distorted the economic analysis they commissioned etc. if they'd thought they could win the argument on rational grounds? Of course not and that is why they have always resorted to fallacy (shifting the burden of proof, anecdata etc.) and evasion and worse. I'm not going to edit/revert anything - I want to know what others think.

[edit] All patents vs software patents

Some of the arguments listed apply to all patents (e.g. the cost to SMEs), while others apply only to software (e.g. software is maths). Worth dividing the list into two parts? steelpillow 04:29, 9 August 2009 (EDT)

Yes. I think it's worth dividing up the list, in two parts, or in many parts, but in a permissive way, avoiding anything that could be seen as criticising. I'll reply also on Talk:Discuss this wiki#en.swpat.org_policy. Ciaran 17:56, 9 August 2009 (EDT)

[edit] Harmonization

Microsoft now calls for a harmonization of patent-systems. I think a good way to put our argument would be: "We agree that patent systems should be harmonized worldwide. But this time the USA should harmonize with most of the rest of the world, instead of the other way round." --akf

I'll make a start on this, maybe a good general name for the concept is unifying international patent systems. Ciaran 08:03, 5 September 2009 (EDT)

[edit] Categorise: legal, social, economics?

I wonder if this list should be split into point-of-view categories.

For example, for a court, where on this wiki can I find the arguments for a judge to throw out a software patent? The software is math argument could be used in most jurisdictions. What else?

For a government that's drafting new legislation, the exclusion of math isn't necessarily important - it will be overruled by whatever legislation they're in the process of writing. For them, I need to find the arguments about the economy and the social value of freedom.

For a business, they don't necessarily care about the economy as a whole, they want to know what will make their dealings easier in their sector. Cutting down bureaucracy, cutting down legal overheads, and removing barriers to market entry are what they should be told about. They don't care if software is math or not.

I'll think more about the number and the names of the categories to try... Comments sought. Ciaran 19:54, 6 January 2010 (UTC)

Also, some articles like Defensive patent aquisition might be better refactored into an argument for why businesses should oppose software patents: the need to defensively patent will cost your business. Ciaran 20:11, 6 January 2010 (UTC)

[edit] new argument: relying on non-use

The new argument added[1] makes a good point at the end:

Any system of laws that continues to function only because the majority of citizens do NOT exercise their rights under those laws is a broken system.

but I wonder if the first two or three sentences are necessary. Ciaran 14:41, 26 April 2010 (UTC)

Actually, this gives me a great idea: can we calculate how many software patents would exist if everyone patented their software as much as Microsoft and IBM do?
Maybe there's a way to estimate the number of patents per thousand lines of code in Microsoft's or IBM's codebase, or in one/some of their products. From there, we could use sourceforge and the BlackDuck database (not sure if that's public) to work out how many software patents are *not* granted because not everyone's using their "right".
This would illustrate the mess we're heading towards, and it would quantify the imbalance between the haves and the have nots of software patents. Ciaran 14:52, 26 April 2010 (UTC)


Just some thoughts I had last night. I wanted to contribute them to the community. Edit them as you please. Thanks for all you do -- Jason


Software companies and open source organizations are not the only ones producing software. Any company like Wal-Mart or Ford, which has hired a programmer to write software may have created a patentable invention. Local, state, and federal government agencies have also generated a lot of software. It may be useful include potential patents that could have been granted to these organizations in you count.

That will be harder to measure. I wonder what the best way is... One way might be to look at how many people work in the commercial software industry (where the developers get paid and the software that gets distributed), and how much software was produced - but I'm not confident we could get reliable numbers.
Or maybe if there are numbers of how many people wrote a certain project (such as Windows95), and how many lines of code were involved, then we could have a very very rough lines-per-programmer figure which we could multiply by some estimation of the people in the sector.
None of this is urgent, but it's good to have ideas written down so that if anyone stumbles upon such figures that might be useful for this, this is the place to add them. We might be able to make this point in the future. Ciaran 21:28, 26 April 2010 (UTC)