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Difference between revisions of "Why abolish software patents"

(List of ideas: Expanded the point on software being copyrighted already)
(List of ideas: Some rearranging and cleaning up of recent addtions)
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===Arguments specific to software patents===
 
===Arguments specific to software patents===
 
* Writing any software that solves any problem IS an invention.  Any time any software programmer types up functional code he or she has invented something that is patentable.  The U.S. patent system relies on the fact that only a small percentage of these software "inventors" take action to patent their invention.  If every programmer attempted to patent the software that they had written it would create a backlog that the patent office would not be able to clear and would gridlock the software industry by ensuring that anything that could be done with a device that contains RAM and a CPU to fall under one or more patents.  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.  
 
* Writing any software that solves any problem IS an invention.  Any time any software programmer types up functional code he or she has invented something that is patentable.  The U.S. patent system relies on the fact that only a small percentage of these software "inventors" take action to patent their invention.  If every programmer attempted to patent the software that they had written it would create a backlog that the patent office would not be able to clear and would gridlock the software industry by ensuring that anything that could be done with a device that contains RAM and a CPU to fall under one or more patents.  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.  
* Not only are most citizens not exercising their rights but are unable to. As stated above, it's very easy to create something that could be patentable. How many of us could afford tens of thousands of dollars that on average is required to get a patent? How many ideas could we patent? This system (no automatic recognition and very costly to gain recognition) creates a system of monopoly rights to be bought by the highest bidder. The more money you have, the more of your and of others' ideas you can patent to gain the monopoly/taxing rights over everyone. This system only has a chance of being fair if those affected directly by it can participate on a near equal footing. [Note that some patents involve technology that costs millions or billions of dollars for execution. Few have the resources to invent in this environment so almost no one is not held back specifically because of the patent monopolies. Those that can play this game, can easily afford the patents.]
+
* Not only are most citizens not exercising their rights but are unable to. As stated above, it's very easy to create something that could be patentable. How many of us could afford tens of thousands of dollars that on average is required to get a patent? How many ideas could we patent? This system (no automatic recognition and very costly to gain recognition) creates a system of monopoly rights to be bought by the highest bidder. The more money you have, the more of your and of others' ideas you can patent to gain the monopoly/taxing rights over everyone. This system only has a chance of being fair if those affected directly by it can participate on a near equal footing. [Note that some patents involve technology that costs millions or billions of dollars for execution. Few have the resources to invent in this environment so almost no one is held back specifically because of the patent monopolies. Those that can play this game at that level can easily afford those (nonsoftware) patents.]
 
* ([[Software is math]]) Since the logic (idea) of software can be reduced to mathematical formula (idea) with Church-Turing Thesis, and because mathematical formula (idea) is not patentable, software should not be patentable as well.
 
* ([[Software is math]]) Since the logic (idea) of software can be reduced to mathematical formula (idea) with Church-Turing Thesis, and because mathematical formula (idea) is not patentable, software should not be patentable as well.
* Since the only requirement to develop software is a commodity computer, which is very cheap, software should not be patentable just as authoring a book that only requires paper and a pen, which are very cheap, is not patentable. Very cheap means (a) the pool of inventors is much higher and (b) the risk to inventing is much lower. This in turn means a monopoly hand-cuffs that many more (a very high liability to progress and cumulatively to individual liberties) while simultaneously the incentive required to stimulate invention goes down similarly because of competition (FLOSS is immediate evidence of the latter effect). Either (a) or (b) is enough to abolish or greatly reduce the power, scope, or duration of patents. (b) is naturally true and keeps getting lower the more quality FOSS exists. (a) is generally true for an average patent (and is also promoted by an increasing body of quality FOSS) and is true to a large degree for most patents because the bar for accepting patents is so low.
+
* Since the only requirement to develop software is a commodity computer, which is very cheap, software should not be patentable just as authoring a book that only requires paper and a pen, which are very cheap, is not patentable. Very cheap means (a) the pool of inventors is much higher and (b) the risk to inventing is much lower. This in turn means (a') a monopoly hand-cuffs that many more (a very high liability to progress and cumulatively to individual liberties) while simultaneously (b') the incentive required to stimulate invention goes down similarly, both because of lower capital risks and because of the mentioned greater competition. [FLOSS forms evidence that many can and do create original quality software without seeking patents and actually while encouraging no-strings attached collaboration.] Either (a) or (b) should be sufficient reason to abolish or greatly reduce the power, scope, and/or duration of patents. (b) is naturally true and keeps getting lower the more quality FOSS exists. (a) is generally true for an average patent (and is also promoted by an increasing body of quality FOSS) and is true to a large degree for most patents because the bar for accepting patents is so low.
* The inventiveness bar to accepting a patent is so low that it would be laughable were it not so problematic. The USPTO gives a 20 year exclusivity grant for an invention that is non-obvious to a person having ordinary skill in the art. Think about this. If you are among the many million that lie on the upper part of the software "skill-level" bell curve, where you find this invention "obvious", you can be kept from using the invention (eg, as the need comes up) for 20 long years for each such obvious (to you) invention. Even if you are on the lower part of the bell curve, you might come to the invention after some work and maybe some months or a few years. You too would be infringing. What makes this troubling and not just laughable, is that we aren't talking about million dollar inventions that are out of reach of most people, but software, fully within the economic reach of anyone (and with ample study material available for free or for a very modest fee). In fact, the languages usable to express new inventions in software continue to approach English (or other native languages) and other constructs familiar to nearly anyone. Most new invention ideas happen in direct response to some new social or economic context that become accessible to many people at around the same time. Shouldn't we all have our turn at the bat based on our ability to reason? Clearly a monopoly granting system seems wholly unsatisfying and surely stifling. Only one can be the first to the patent office with the full cash on hand.
+
* The inventiveness bar to accepting a patent is so low that it would be laughable were it not so problematic. The USPTO gives a 20 year exclusivity grant for an invention that is non-obvious to a person having ordinary skill in the art. Think about this. If you are among the many million that lie on the upper part of the software "skill-level" bell curve, where you find this invention "obvious", you can be kept from using the invention (eg, as the need comes up) for 20 long years for each such obvious (to you) invention. Even if you are on the lower part of the bell curve, you might come to the invention after some work and maybe some months or a few years. You too would be infringing. What makes this troubling and not just laughable, is that we aren't talking about million dollar inventions that are out of reach of most people, but software, fully within the economic reach of anyone (and with ample study material available for free or for a very modest fee). In fact, the languages usable to express new inventions in software continue to approach English (or other native languages) and other constructs familiar to nearly anyone.
* Software Development unlike other forms of mechanical invention is already afforded protection within existing copyright laws. First, this means that traditional and much more focused and balanced protections do already exist for publishing software details (and many companies have also shown tremendous skill at leveraging the complexity of software binaries using trade secret protections to thwart competitors). Second, because going from source code to running binary is effectively a trivial step, applying patents to the running machine wholly pre-empts all the more balanced protections and safeties from copyright law. The broader patent would always trump copyright in effect and control (note also that patent law has no "fair use" nor recognizes independent invention). Copyright law was designed to cope with many simultaneous equal individual creators in mind, but patent law was designed to stop or throttle competition that mostly included few well-capitalized entities. With respect to balancing copyright against First Amendment rights, the US Supreme Court highlighted Section 102b (http://www.law.cornell.edu/uscode/17/102.html#b ) in the ruling for Harper & Row, the "idea/expression dichotomy strike[s] a definitional balance  between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression." Software patents most definitely are not limited in scope to a definite expression but necessarily cover broad concepts and the like.  
+
* Software Development unlike other forms of mechanical invention is already afforded protection within existing copyright laws. First, this means that traditional and much more focused and balanced protections do already exist for publishing software details (and many companies have also shown tremendous skill at leveraging the complexity of software binaries using trade secret protections to thwart competitors). Second, because going from source code to running binary is effectively a trivial step, applying patents to the running machine wholly pre-empts all the more balanced protections and safeties from copyright law. The broader patent would always trump copyright in effect and control (note also that patent law has no "fair use" nor recognizes independent invention). Copyright law was designed to cope with many simultaneous equal individual creators in mind, but patent law was designed to stop or throttle competition that mostly included few well-capitalized entities. With respect to balancing copyright against First Amendment rights, the US Supreme Court highlighted Section 102b (http://www.law.cornell.edu/uscode/17/102.html#b ) in the ruling for Harper & Row, the "idea/expression dichotomy strike[s] a definitional balance  between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression." Software patents most definitely are not limited in scope to a definite expression but necessarily cover broad concepts and the like.
 +
* [Partly as summary to some earlier points] Most new invention ideas happen in direct response to some new social or economic context that become accessible to many people at around the same time. Shouldn't we all have our turn at the bat based on our ability to reason? Clearly a monopoly granting system seems wholly unsatisfying and surely stifling. Only one can be the first to the patent office with the full cash on hand. Patent monopolies derive their legality from the Constitution only when they would "promote the progress of science and useful arts." For at least these reasons, software patents would be unconstitutional.
 
* The now obvious "auto-filling" feature of spreadsheets is patented and not available in builds of free software office software for certain distributions.[https://bugzilla.redhat.com/show_bug.cgi?id=146883]
 
* The now obvious "auto-filling" feature of spreadsheets is patented and not available in builds of free software office software for certain distributions.[https://bugzilla.redhat.com/show_bug.cgi?id=146883]
 
* Working with unencrypted (no copyright protection) DVDs is not possible without violating patented codecs.
 
* Working with unencrypted (no copyright protection) DVDs is not possible without violating patented codecs.

Revision as of 23:15, 14 October 2010

This is a rough article to make a long list of all the arguments against software patents. This list can serve as a starting point for drafting submissions for consultations from patent offices, governments, and courts, and other campaign materials.

When making the case against software patents, it's very important to have an array of explanations. What seems the most important to you might not seem important to someone else. You have to be able to adapt your explanations to your audience.

Existing articles

List of ideas

Arguments specific to software patents

  • Writing any software that solves any problem IS an invention. Any time any software programmer types up functional code he or she has invented something that is patentable. The U.S. patent system relies on the fact that only a small percentage of these software "inventors" take action to patent their invention. If every programmer attempted to patent the software that they had written it would create a backlog that the patent office would not be able to clear and would gridlock the software industry by ensuring that anything that could be done with a device that contains RAM and a CPU to fall under one or more patents. 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.
  • Not only are most citizens not exercising their rights but are unable to. As stated above, it's very easy to create something that could be patentable. How many of us could afford tens of thousands of dollars that on average is required to get a patent? How many ideas could we patent? This system (no automatic recognition and very costly to gain recognition) creates a system of monopoly rights to be bought by the highest bidder. The more money you have, the more of your and of others' ideas you can patent to gain the monopoly/taxing rights over everyone. This system only has a chance of being fair if those affected directly by it can participate on a near equal footing. [Note that some patents involve technology that costs millions or billions of dollars for execution. Few have the resources to invent in this environment so almost no one is held back specifically because of the patent monopolies. Those that can play this game at that level can easily afford those (nonsoftware) patents.]
  • (Software is math) Since the logic (idea) of software can be reduced to mathematical formula (idea) with Church-Turing Thesis, and because mathematical formula (idea) is not patentable, software should not be patentable as well.
  • Since the only requirement to develop software is a commodity computer, which is very cheap, software should not be patentable just as authoring a book that only requires paper and a pen, which are very cheap, is not patentable. Very cheap means (a) the pool of inventors is much higher and (b) the risk to inventing is much lower. This in turn means (a') a monopoly hand-cuffs that many more (a very high liability to progress and cumulatively to individual liberties) while simultaneously (b') the incentive required to stimulate invention goes down similarly, both because of lower capital risks and because of the mentioned greater competition. [FLOSS forms evidence that many can and do create original quality software without seeking patents and actually while encouraging no-strings attached collaboration.] Either (a) or (b) should be sufficient reason to abolish or greatly reduce the power, scope, and/or duration of patents. (b) is naturally true and keeps getting lower the more quality FOSS exists. (a) is generally true for an average patent (and is also promoted by an increasing body of quality FOSS) and is true to a large degree for most patents because the bar for accepting patents is so low.
  • The inventiveness bar to accepting a patent is so low that it would be laughable were it not so problematic. The USPTO gives a 20 year exclusivity grant for an invention that is non-obvious to a person having ordinary skill in the art. Think about this. If you are among the many million that lie on the upper part of the software "skill-level" bell curve, where you find this invention "obvious", you can be kept from using the invention (eg, as the need comes up) for 20 long years for each such obvious (to you) invention. Even if you are on the lower part of the bell curve, you might come to the invention after some work and maybe some months or a few years. You too would be infringing. What makes this troubling and not just laughable, is that we aren't talking about million dollar inventions that are out of reach of most people, but software, fully within the economic reach of anyone (and with ample study material available for free or for a very modest fee). In fact, the languages usable to express new inventions in software continue to approach English (or other native languages) and other constructs familiar to nearly anyone.
  • Software Development unlike other forms of mechanical invention is already afforded protection within existing copyright laws. First, this means that traditional and much more focused and balanced protections do already exist for publishing software details (and many companies have also shown tremendous skill at leveraging the complexity of software binaries using trade secret protections to thwart competitors). Second, because going from source code to running binary is effectively a trivial step, applying patents to the running machine wholly pre-empts all the more balanced protections and safeties from copyright law. The broader patent would always trump copyright in effect and control (note also that patent law has no "fair use" nor recognizes independent invention). Copyright law was designed to cope with many simultaneous equal individual creators in mind, but patent law was designed to stop or throttle competition that mostly included few well-capitalized entities. With respect to balancing copyright against First Amendment rights, the US Supreme Court highlighted Section 102b (http://www.law.cornell.edu/uscode/17/102.html#b ) in the ruling for Harper & Row, the "idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression." Software patents most definitely are not limited in scope to a definite expression but necessarily cover broad concepts and the like.
  • [Partly as summary to some earlier points] Most new invention ideas happen in direct response to some new social or economic context that become accessible to many people at around the same time. Shouldn't we all have our turn at the bat based on our ability to reason? Clearly a monopoly granting system seems wholly unsatisfying and surely stifling. Only one can be the first to the patent office with the full cash on hand. Patent monopolies derive their legality from the Constitution only when they would "promote the progress of science and useful arts." For at least these reasons, software patents would be unconstitutional.
  • The now obvious "auto-filling" feature of spreadsheets is patented and not available in builds of free software office software for certain distributions.[1]
  • Working with unencrypted (no copyright protection) DVDs is not possible without violating patented codecs.
  • As of 2009, firms involved in developing HTML as an open standard with embedded video support could not recommend a video format because of the risk of patent encumbrances.
  • Most software patents describe the problem that the claimed "invention" solves but they don't detail *how* it is solved e.g. at least with design and implementation. As a result, all solutions to the problem are patented (and not just the one which is implemented by the patent applier).
  • The computer, which can perform any computation specified by a table of numbers ("instructions") is already patented. Any particular computation thus performed is a subset of behavior already patented in the patenting of the computer itself.
  • The significant body of prior art software is confidential, unsearchable, and inaccessible. All publicly accessible software is prior art to all later filed patent applications. But, except for Open Source Software, most software is made public in a format that hides the disclosure and user agreements prohibit reverse-engineering the code. Thus, many patents cover inventions that have been in the public domain for years.

Software arguments that could apply to patents in general

  • After 20 years, the disclosed ideas are almost all useless
  • Companies in the software industry are banding together for the sole purpose of patent defence (ex: OIN), illustrating the system is broken.
  • In the United States, the Constitutional purpose of patents is to "promote the progress of science and useful arts", but there are numerous studies and reports showing that software patents retard progress, and have a great cost to the economy.
  • Software is usually built upon thousands of different ideas, which all could be patented. There is not one patent for one product, as it is mostly the case for physical products.
  • 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 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.

Arguments against patents in general

(see also: Should the whole patent system be axed?)
  • SMEs and individuals can't afford to do patent searches
  • SMEs and individuals can't afford to defend themselves
  • When a standard is patented, the only way to avoid the patent is to avoid the standard
  • There is no practical disclosure of the patent due to the sheer volume of patents and the legal risks that arise from non-patent lawyers interpreting patents. (so there is little benefit to society from granting the company a monopoly in return for disclosure)
  • Patents dampen the competitive drive that feeds capitalism.
  • It's too difficult for the patent office (or anyone else) to consistently and objectively assess the worthiness of a patent (how to prove non-obviousness ?). Many patents are overturned when they reach the courts (citation needed) which suggests current assessment methods are not good enough.

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