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Supporters of patents sometimes say that businesses need them in order to have something tangible in return for their initial investment into researching their product idea. However, in software development, where the necessary initial investment is usually relatively small, and can be zero, this is not credible. Worse, if companies feel obliged to obtain patents, this obligation then creates a very large cost of entry.

The devil's bargain[1] can be called a bargain only if it benefits someone besides the devil. A major justification for the bargain, the encouragement of entry by new people with new ideas into industries with high cost of entry, i.e. high risk, does not apply to software development.[2] Software development is exceptionally cheap, thus low risk.

  1. The cost of equipment is minuscule compared to other business activities: buy a single personal computer and lease an internet connection and you are ready for action.
  2. The cost of training is low: the internet overflows with programming learning materials and open source software projects looking for contributors.

In this regard, software development does not resemble an industrial activity like mining or manufacturing. It is an extremely low risk venture, yet a single programmer can, and frequently does, innovate leaps and bounds beyond the industry state of the art.

The purpose of the patent system, the devil's bargain, is to promote innovation in high risk industries. Software development is a low risk industry. Software innovation happens without patents. In the software realm, the patent system only hinders innovation, because it introduces risk where none existed. When it comes to software, the devil's bargain is no bargain. The justification does not apply, thus we should not be surprised that the system fails to induce the intended effect, and in fact induces just the opposite effect: stagnation.

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[edit] References

  1. What If The Very Theory That Underlies Why We Need Patents Is Wrong? Mike Masnick for techdirt.com Apr 15, 2010
  2. Modeling a Paradigm Shift: From Producer Innovation to User and Open Collaborative Innovation Carliss Y. Baldwin and Eric A. Von Hippel November 25, 2009

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