Abolishing patents: Too soon or too late? | Opensource.com

Abolishing patents: Too soon or too late?

Posted 09 Jan 2013 by 

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"Patents are here to stay." This is the sort of statement that makes me uneasy. I guess in the 17th century the common wisdom was "slavery is here to stay." In the 18th century giving voting rights to women seemed absurd and foreseeing open borders between France and German was crazy talk in 1945. At a certain point, fortunately, those things changed for the better. Is it time to change the common wisdom on patents as well? Is the time ripe—will it ever be?—to utter the frightening word abolition? I do not have the privilege to know the answer, but I regard the question as a legitimate one. According to some patent experts, however, questioning the very existence of patents seems blasphemous.

Why?

Patents have a strong appeal to many. Those who have a large patent portfolio, for instance. Lawyers and patent attorneys do not seem particularly eager to see their careers end either. The same can be said for patent offices. The list is rather long. I must confess, I myself make part of my living consulting on patent-related transactions, so I have a stake weighing against abolition. All the same, it would be unfair to just say it is only a conflict of interest. It is also, perhaps chiefly, a cultural bias. We know what we have, but we don't really know what we don't have. The system has worked well for so many years, why should it be abolished? Can't it be just reformed? And if abolished, to be replaced with what? Horror vacui! Again, common wisdom.

Don't get me wrong, I am not saying that all patents should be abolished tomorrow unconditionally. Of course we should apply an old saying: "Primum non nocere." (First, don't do damage). Keep a conservative approach, prefer freedom of enterprise over restriction and exploitation of others' work. Instead, incidentally, there is a strong and unbelievable push toward ever increasing patent protection, monopolies, new forms of "intellectual property", even without any trace of evidence, or even an attempt to gather any, that such changes are beneficial. Europe and database rights should be an example of this wrongful attitude. But having said that, I have no one-size-fits-all solution to the issue at hand, although all evidence points in one direction: abolition.

But patent abolition does not appear in any legislative agenda, with some exceptions, like New Zealand (although prohibition to patent software is apparently being watered down to match the current situation in Europe). If you dare—as I dared—to put it on the discussion table, asking, "Why do we have patents, wouldn't we be better off without?", then you are labeled as an Utopian at best, implying you are a fool and are attacking property as well as the free market. Pas du tout!

Patents are a relatively recent creation conceived as a means to a goal. I therefore consider it a legitimate proposition to ask if the goal (spurring innovation by providing incentives, via a monopolistic prize, to research and development) is best served with patents and whether the cost is too high.

Some say this is just wishful thinking. Even if they concede that questioning patents is a legitimate activity, it is just a philosophical one to them. A very competent and brilliant Free Software colleague, in order to reject the evocation of a future abolition of patents, and in particular of the so-called software patents, used a very evocative Scottish proverb: "If wishes were horses, beggars would ride." Meaning, of course, it is not going to happen.

Are we sure?

Only three or four years ago, it was commonly thought that the patent system in technology was capable of self-regulation. Some characterized the process (as did I, but with different conclusions) as Mutually Assured Destruction (MAD), a situation where balance is reached similar to the balance of forces during the Cold War. But MAD doesn't work for Non-Practicing Entities (NPEs), or as they are often referred, for patent trolls. Good, they say, get rid of trolls and the system is fixed. Not quite so, sorry.

MAD works only when two opposing forces are equally and mutually threatened, which does not apply in many cases, beside the patent trolls example. What is more troublesome is even when in theory there are two big players with dozens of patents, MAD has not worked well. The last two years have shown that, at least in the smartphone industry, MAD did not provide sufficient incentives to stay out of the courthouses. Indeed everybody has sued everybody else almost everywhere.

But this is just the tip of the iceberg, we can't count how many businesses are disrupted by the threat of impending patent litigations, in a system where the mere chance of litigating a patent lawsuit is frequently not an option for the long tail where innovation mostly occurs. Patents are there more to preserve the existing technology than to spur new technology to come around. This is by design, and has always been so, but now technology moves at a faster pace and the contradiction is more evident.

Everybody sees that the system is not working, it creates problems, it destroys value, it provides incentives not to innovate, but to litigate. Most of the time such litigation is engaged by someone who would otherwise be disrupted by more efficient competition. Economic studies are stacking up showing how the economy of patents is completely astray, especially in the Information Technology field. The evidence that at least some kind of radical reformation is required is so abundant that even hitherto unsuspected sources, for instance free market, School of Chicago thinkers like Gary Becker and Richard Posner, are speaking up, calling for excluding certain fields of technology from patenting. These include fields where investment is slim and rewards are huge, making software patents the best example where this should occur. The curtain of silence is being lifted. Some of the patents issued, such as those on software and on graphical user interfaces, are receiving a lot of attention reaching the front pages of the news. Even the U.S. Patent and Trademarks Office seems to be taking a U-turn on the rubber stamping some patents of a kind that formerly had a very easy way forward.

Finally, one cannot underestimate the fact that Free Software (or open source) is really having a huge impact in the new paradigm shifts, including the rise of social networks and cloud computing. Patents and Free Software are antonyms. Recently Richard Stallman provided an easy operative way to overcome the problem of defining what a software patent is, which is all in all consistent with my own litmus test: it's a software patent when you infringe it by distributing software. It may be a rough, blunt rule, but it provides the bulk of what we need to surgically remove software patents if we want to preserve most of the systemcar. Free Software provides a clear case for abolition and its main proponent provides a clear rule to deliver it and preserve the system. But Free Software is just one aspect, albeit a major driver, to the shift that is occurring now.

We are experiencing the dawn of a new era in technology (especially in the software), massively moving from scarcity to abundance of digital goods, akin to the big discontinuities that happened in history, of the same order of magnitude as moving from hunting and collecting to farming, or from non-industrialized, hand crafted, to industrialized, automated production of goods.

Newcomers, disruptors, have this in common: they want to get rid of the existing system, by removing the tools that preserve the status quo, for which the poster child is the patent system. Unsurprisingly, today's disruptors are en masse speaking against software patents. This ranges from Amazon—certainly not shy on patenting, but having in Jeff Bezos someone who calls at least for huge and swift reform—to Google, Twitter, Facebook, Rackspace, Red Hat, and many others, who hold a stance against software patents with various degrees of radicalism, putting it in black ink.

Digital rights activists, scholars, public opinion and (perhaps the majority of) economic interests are getting closer, inching towards abolitionist positions. It is happening now. How fast is hard to say, but the direction is—at least to me—clear.

Call me a fool, but I believe we are about to see some beggars riding a lot of odd horses in a short while.

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42 Comments

Shawn H Corey

Patents should be completely abolished. If you want to know what will happen, look at those countries which didn't have patents (before Americans thought they owned the world). Their economies thrived. Anyone who thinks patents are necessary does not believe in free enterprise.

BTW, those hexagons in your diagram should be octagons, like a stop sign. Oh, wait, that's probably patented.

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stites
Open Source Champion

"The system has worked well for so many years, why should it be abolished?"

I spent more years in the software industry before software patents were invented than after software patents were invented. When the only intellectual property law which applied to software was copyright the legal system worked well in regards to software. It was only after software became patentable as well as copyrightable that the legal system became a hazard to the software industry. So that quote about not abolishing a well working system applies to the transition from copyright only to both copyright and patents. It does not apply to the impending transition to copyright only.

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Steve Stites

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carlopiana
Open Minded

Hi, I don't understand if you realize that the entire article is in favor of abolishing software patents, and the quote is a figure of speech in the mouth of those against it.

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stites
Open Source Champion

Yes, I understand that. I have heard that argument seriously put forward by corporations who favor software patents so I put in my two cents worth.

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Steve Stites

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Unidentified

For a start: (a) even the playing field by imposing "user pays";
and (b) reinstate the requirements for a best-practice working implementation.

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Unidentified

Whenever you allow something, but only under certain circumstances, the lawyers always win. Because you simply shift the legal burden from one place to another. You don't remove the burden at all. Sorry, but your suggestions will only make the status quo worse. The one who can afford the best lawyers wins.

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Bob Robertson

Oh man, you should see the heat I get for saying Patents should be abolished.

As if I was trying to nuke the human race back to the stone age!

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Sheng-Chieh

I'm not convince that patent should be completely abolished, but
the expiration date is definitely too long. Have all patents to be
3-5 year. In other words, the person who thought of an unique idea
have a 3-5 years head start, but not a monopoly.

Sheng-Chieh

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shawnhcorey
Open Minded

Sorry but you just demonstrated one of the biggest problems with patents. Patents do not protect an idea. Patent law states that ideas can not be patented. Only the implementation of an idea can be patented. If someone else comes up with a better implementation, they can patent it. However, nowadays, if you try to patent an improvement, you will be sued for patent infringement. That's why patent law cannot be fixed. An fix is temporary. It's only a matter of time become some lawyer uses patent law to protect ideas and gets a judge to agree. As long as patent law of any type exists, ideas will be frozen and innovation killed.

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carlopiana
Open Minded

You are right: if A patents a solution in a lame way, and B perfects the same idea with a better implementation, B must ask permission to A (and since claims are very broad, there is likely no way around). This is a simple example showing how patent law prefers priority over quality. There is a famous example on how before and after the patents by James Watt expired, the installed horsepower of steam machines had an inflection point, arguably because more powerful and efficient machines could be made, meaning that actually Watt's patent prevented innovation, rather than promoting it.

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bvanevery
Open Minded

But efficiency of a market is not the only argument to be made. Social equity is another argument. Walmart is a *very* efficient market. It also busts unions and some of its workers have recently gone on strike anyways. It serves up poisoned pet food fairly regularly due to their supplier relations in China. Large corporations with big portfolios, small inventers trying to keep larger outfits from ripping them off, and patent trolls are all part of the patent market. They are not all equivalent cases and equity to small patent inventors needs to be considered.

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Shawn H Corey

True, but unless you can show that there's more money to be made without it, no politician is going to get rid of it.

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Knut

Carlo, You apply wrong patent regimes. The European regime protected this kind of innovation, whereas the US makes no demand of originality, it assumes that the all novelty originates in the US. You have to separate between before and after 1986 and the changes made in the US in 1980 to 1990.

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carlopiana
Open Minded

Knut, good points, but I am speaking of patent regimes without any specific reference to USA. Why do you believe I assume that the patent system is astray only in the US? The reference I made was to the UK, if you are interested in more of the story, here is an article by Michele Boldrin: http://mises.org/daily/3280

Moreover, as the current regime is, US and European patents are come very close to each other, in a bad synergy I should add. At least now submarine patents are less practicable, this is the only major improvement I see.

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Knut

Maybe because I have argued this in court with very competent lawyers. The US refused all IPR protected under the patent regime that covered the rest of the world. They "invented" software patents and expanded US laws, and then forced the EU to accept their new regime, so that MS would "license" their OS in Europe. Afterall millions had signed individually on that they would honour the US regime. Read the development and discussions in 1980 to 1990.

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Knut

The patents law are different because of US trade laws and precedence that you fail to discuss. You also fail to discuss the historic difference. You have a world where e.g. all telecommunication is govern by standards, but where the US has elected to not comply with these standards. The iPhone may be considered a huge commercial success, based on GSM where the FCC has with trade laws, subsidy of US proprietary technology - CDMA has been award all the suitable radio frequencies, while GSM use the DECT radio frequency in the US - to provide coverage for its marketshare. The HLR that Logica was penalised for was at the time of the banning not allowed into the US. So, you have to look at US Trade Laws, because these are often used to enforce compliancy to US IPR / patent regime - "if you violate, you will be denied access for all what you sell to the US". That is the basis for contesting the US patent. If you are certain that the US president will be on the line and demand that you still can deliver and sell you accept to be raped and plundered.

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miken

"Everybody sees that the system is not working, it creates problems, it destroys value, it provides incentives not to innovate, but to litigate." Wow, that's quite an assumption... or can you cite that? Maybe I'm stupid, but I can't see why a company "owes" you the software that it spent so much money to develop. If you choose to release your software under an open source license then that's your choice... who are you to take that choice from someone else?

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miken

(Sorry, I didn't mean to wrap "owes" in quotes.)

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Shawn H Corey

Patent law states that software can not be patented. All software patents are illegal. The decision has already been made.

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carlopiana
Open Minded

Your comment ‒ thank you for your contribution ‒ bears two questions.First: cite? Have you looked into the cited articles by Posner and Becker? Adding Boldrind-Levine "The case against Patents" would do [Boldrin, Michele and Levine, David K., The Case against Patents (September 2012). FRB of St. Louis Working Paper No. 2012-035A. Available at SSRN: http://ssrn.com/abstract=2148738 or http://dx.doi.org/10.2139/ssrn.2148738]Second: what about retributing the effort in developing software? Easy answer: for that, copyright has proven to be more than effective, actually, perhaps even too much (see Microsoft, years 1990-2000).Patents,  do not protect "an application" or hard-sweated software written by a company, but some basic and vague ideas behind all applications, mine and yours included, that happen even by chance to go through the same route.

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Shawn H Corey

Patent law states that algorithms can not be patented. Alan Turing and John von Neumann proved that all software is algorithms. All software patents are illegal.

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miken

Personal property rights are a cornerstone of a free society. If you abolish patent law, what form of protection do you propose to replace it? I don't claim to be an expert, but isn't a patent a company's version of a deed or title?

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Shawn H Corey

Ideas are not personal property. Ideas cannot be patented; patent law states this. (They also cannot be copyrighted; copyright law states this too). Patent laws states that patents are a special privilege, not part of free enterprise. Patents exists only because patent law allows them. There are not and never were considered part of the natural world or any economic model. Abolishing patents will only return free enterprise to its natural state. They do not need to be replaced.

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carlopiana
Open Minded

Dear friend, you could hardly be more misguided.

An idea is way different from a piece of land. Patents are state-created monopolies over ideas on how to do certain things. Unlike rights on the land, or things, they have never existed until 19th century. They are a limit to the freedom of entreprise, since they create a barrier to what one business can make in its own factory. As for software, they were not granted until mid-nineteen-nineties, and everybody were happy.

If patents were abolished, people would still own chairs, lightbulbs and other stuff which happens to infringe one or more patents, rest assured. As for software, copyright is more than appropriate, even overreaching. Do you have patents on novel? Do you have patents on movies? But you do have novelists, publishers and movie-makers.

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Knut

No, implemented right it protects investments and promotes innovation. Wrongfully implemented it protect thievery and abuse of power. The US system is not based on protecting the innovation and enable those who invents things and systems - ways of doing things. It servers only to protect the big and powerful and their rape and pillage on the way. See how Apple seeks to protect their market, claiming that they "invented" round corners. See how MS has taken code (including from me and the company I used to work with). Patents should not relate to "power", just innovation. Ask the US Patent office to assist when violation is detected to assist in helping the victim that has been copied, not their powerful violator that makes a "portfolio of IPR". Another example is RIM's "push email" that had to be dropped, because a considerable European company had provided the service for 10 years before RIM was formed. The problem was that this was now big enough to litigate until RIM had exhausted all assets. But they have not rules a penny in compensation, that would have wiped out the copy-cat company. If they have granted protection, the patent office should ensure that all licensing fees collected should be seized and paid to the one that was violated - plundered. It should not care that the US companies then will default or the country of and company size of the inventor.

The Bern / European convention protects source code at the same way as an author is protected from plagiarism. This is easier to prove and is based on proving the originality of the work. That means you cannot publish "The Emperor's New Clothes" with black covers and an Apple logo and be protected.

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Shawn H Corey

The problem with the patent system is that it's unstable. Either it goes to one extreme where it's nothing but a piece of paper you can hang on the wall next to your diploma, or it goes to the other where patent trolls are the only one to profit. Since it is a special monopoly granted by the government, it's best to get rid of it and let free enterprise determine the market.

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miken

So, you're not really suggesting we abolish patents, just remove software from it's context to be covered under copyright laws, correct? Your editorial reads as though you believe ALL patents are unjust (at least to me).

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carlopiana
Open Minded

My position is that patents are a recent creation of the legislation. They need to be questioned as all human legal creations are. Now there are clear cases where patents need not to be granted, and that is a no brainer. Software is one of these cases.

There are some other cases where this is not so cleancut, for those cases one needs to be more cautious, I have no absolute position.

Finally, before extending monopolies any further, a clear, convincing case with a lot of evidence, should be brought forward, something that has never been done so far with maybe the exception of copyright (but why has this been extended so much?), and yet we have seen all sort of protectionism fluorish, inside and outside USA.

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Knut

The patent laws were made to provide compensation to the innovator. When it is turned against the notion of innovation, to control market power, it should be removed. Simple because we need a free market, where the best technology can be chosen and used when making new things.
Weird ideas should not be allowed "patented", only things that you can show that you have made (past tense) and without using ideas taken from others. and then the penalty should be that if you lied to the patent office about the originality, and "Mr. Jones of Littlewood, Somewhere" can show that he had the same idea years ago, asked for funding from the large US companies and was denied this, then he should now be awarded all licensing fee collected - every penny. If he is dead and gone after years of hardship, let them pay his estate.
Software is in most these days, it is not that simple. A transmission made with cogs and moving parts would be patented, but a transmission that us a microprocessor to control the movement of the cogs to optimise transmission cannot. With Copyright you have to make the thing that is protected from being copied, with trademark, you have to make and submit what is to be protected.

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Wm. F. Bos, P. E.

Knut:

Your first sentence reflects a common.misconception. The purpose of a patent is not to provide compensation for the inventor, it is to get him to disclose his invention rather than keep it as a trade secret. The compensation is only supposed to be an inducement to get the inventor to disclose. Read my post of January 16.

Wm. F. Bos, P. E.

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Shawn H Corey

Actually, patent law says nothing about compensation. It says the patent holder has exclusive right to market the invention or process and may sue any who also try to market the invention or process. Compensation of any type is not mentioned.

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Wm. F. Bos, P. E.

Shawn:
Interesting!

It would be interesting to know what they went through when first writing the patent laws to achieve that.

The Wright Brothers were never able to enforce their patents on the airplane. Orville went broke trying to. This probably was because they used wing warping to enable a coordinated turn and Glen Curtis very quickly came up with the aileron to do the same thing. I don't know if he ever tried to patent it. If he did, no one payed any attention to it.

Henry Ford had to go to court and prove that there was no valid patent on the automobile before he could sell his.

In order to make the patent system work for you, you have to com from a wealthy family of lawyers like bill gates. The small inventor doesn't have a chance

The patent system is just plain counter productive. It stifles the growth of technology. We would be better off without it.

Among the properties that I feel a reformed patent system should have are:

1) Only individuals could hold patents
2) They could not assign them
3) They could not issue exclusive licenses
4) They should have a short life.
5) Full disclosure should be required

This is not likely to happen.

Wm. F. Bos P. E.

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Wm. F. Bos, P. E.

All:
My understanding of the purpose of a patent is to encourage the inventor to disclose his invention, so that others can see what it is. This gives them the opportunity to invent an even better item to serve the purpose. The quid pro quo is the monopoly for a limited period of time. The problem is that we are not getting the "quid" for the "pro quo". The inventor is getting very generous terms for his monopoly. but the disclosure is sketchy at best. My understanding is that the publication of source code is not even required for software patents. Further more, the life of these things has been extended to the point where they can hardly be considered a limited period of time. The result is that the original philosophy has been violated, and the original purpose is not being served. In the case of software it would be best if software patents and copyrights were just brought to an end. This is demonstrated by the success of the Open Source software development projects. There just is no good reason for software patents and copyrights. they just get in the way of the advancement of technology.

Bill Bos

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Don Begley

The US Constitution gives Congress the power to regulate authors' and inventors' stuff for a "limited time." (Article 1. Section 8). Obviously, the founders wanted to encourage innovation. There should be protections for software - especially if a large company can prove a patent was infringed on by either stealing the source code and "refactoring" it for their own profit; or otherwise reverse engineering the executable code for their profit. Given today's technology, that is easy to do. I know I would be pissed if I invested years and billions of dollars in developing a software guidance system for the cruise missile only to have it stolen by China and given to Iran and North Korea. Congress, however, bottom line, can do what they want, constitutionally.

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carlopiana
Open Minded

I am sorry I fail to understand most of your arguments, barring the correct reminder that US Congress can give limited in time exclusive rights (but the decision to grant software patents was not passed by the Congress).

Protection of software is more than adequately provided by copyright.

Patents do not protect software, they protect ways to solve a technical problem, protection which lately has been found applicable to software, but with very vigorous criticism and without the full scrutiny of the Supreme Court of the US.

There is no need to "steal" (steal?) the source code to infringe a patent, as well there is need to write software to have patent protection. Patents are written by lawyers and patent attorneys. You don't find code in there (or anything useful to program software), maybe this will be required in the future (USPTO is conducting a RFC roughly on that)

"Invest billions of dollars" to write software? That's protected by copyright, and it's anyway largely a myth. Some of the most valuable military technology is actually based on Free/Open Source Software. Plus, you fail to understand a basic rule of patents: protection is given only with full disclosure of the technology, which is somewhat at odds with military secret. And for that matter, patents are territorial. In China US patents are of little use. And since China is being doing a lot of inventing and patenting lately, the course of action could well be the other way round.

Finally, North Korea or Iran or any rougue state don't give a damn about US patents (or European patents), which don't apply to them anyway.

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Knut

The US patent regimes exists and applies to North Korea in that any violator of US Patent law is denied trading in countries that honour these.

Carlo, the main problem is that US Trade laws are written in a way that allows US companies to copy, steal and pillage foreign companies. They elected to ignore the Bern Convention and has a trading law that states that all innovation originates in the US.
Read rationale behind penalising a British company: Logica, for providing a system that was banned in the US: GSM to Cuba - as a violation of US trade embargo.
If you need an example of copy of concept and code from a European company for commercial exploitation without any compensation by the US company, ask me and I will show you the MS "Access"... before MS was formed.

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carlopiana
Open Minded

I get what you say, it is a form of "IP Imperialism" for which USA will be retributed badly in the next years when China will be the most dominant patenting jurisdiction, and it is where some of the most relevat IT innovation occurs nowadays.

Anyway, to have an example of bullying you don't have to go very far, USA over USA the case of the first company behind Siri is quite telling.

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Steve White

This is a very unfortunate article. It is very much the skinny end of the tail of the bell curve.

It completely ignores the purpose of patents in general, which is very much for the public good. It is a trade-off between increasing technical information, and improving an inventor's chances of bringing a new product to market. How on earth you could miss this?

Compare patents to mutually assured (nuclear) destruction? That's just asinine. Patents don't work generally? Maybe in your cozy bedroom, but not outside of it.

By muddying the issues, you have done harm to our aim of making software unpatentable. Please, don't go away mad.

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Knut

The problem is that European patents have always been strong, with a huge demand on the applicant to prove innovation - that what is patented is new and not just a modification of what other have done.
Then comes the US patent regime, that first denied to accept the European patents under the Bern accord. So, they made their own regime where high school drop-outs were set to approve US patent application. With a US trade law that determines that all innovation is done in the US, no search was ever demanded by the applicants to prove the innovation. So e.g. most of Microsoft's "patents" are notions learned in Europe, and applied for by Microsoft. E.g. Microsoft Access is a copy of what I and some others made, and among others demonstrated to Microsoft - even the name is ours. Object-oriented programming is European, so I wonder how much of US IPR is left once we make claims. I agree that the old regime is better than what we have today, where it is fully possible to paint a stick of 100cm pink and call it a "pink meter" and patent it. I see no novelty in the curvature of the buttons, how to stop scrolling - as long as it stops at the end. If you invent a new system, with no copying of ideas published by others, claim copyright and license the use, but beware that others may make claim of that you have copied their ideas - here you need the lawyers. Let us sue the Americans for copying and see whet they do with their "patent laws".

The US companies have invented their own patent regime that was designed to protect US companies. The rest of the world have no use of this regime and have been violated for years. The Americans elected to set aside European patents, it is time to set things straight.

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Heather Niven

I agree that patents will become less and less of a focus as tech development accelerates, as more value is had from micro businesses servicing long tail customers and as innovation becomes a more collaborative and open process.

Innovation is often seen in small creative outfits who move fast, respond to the market before most other businesses do and often collaborate or co develop with others naturally due to their size and capacity. What they don't normally do is wait months for paperwork to get sorted out or sink their life savings into legal fees and patents. UK GVA in the creative industries is at around £72bn I wonder how much of that is from patented material?

Also, it isn't usually the first (and normally patented) idea that has the best potential to be commercially successful, the second and third attempt by competitors has often solved problems not ironed out by the initial model. Through the patenting model, surely that progress is stunted.

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tanstaafl

i would say that the patent system is certainly appropriate in some circumstances, but not all, and certainly *never* for software. i used to work in the semiconductor industry, and by the time i left in 1997, the cost to build a new fabrication facility from scratch was slightly over U.S.$1 billion. a research facility was smaller, but had similar costs, because the equipment was either bleeding-edge or manually assembled by a team of researchers (because the necessary equipment did not yet exist), either of which is incredibly expensive. patents protect such massive investments, because without them, it's both quicker and cheaper to copy the work of somebody else, leaving the guy who did the heavy lifting of original research (both basic and process development) all the costs and far fewer of the rewards.

patents were meant to improve society by promoting innovation; the inventor was to describe in detail his covered invention, and in return, Government (society) would grant him a monopoly, a financial incentive to disclose *in detail* the construction and operation of the invention (so that a practitioner of the art could duplicate the invention). when the patent expired, the inventor would have recouped his development costs and established his business; society would benefit because competitors would then be free to use the information in the patent, lowering consumer costs through competition. when entry costs are great, patents work very well (although the system can still be gamed), but software is different than physical devices and processes. with U.S.$10000, i can get a smoking hot computer and use it to develop amazing tools (given the talent to write software, of course). for the same amount of money, i can make a 10% (or less) down payment on a patent search that is virtually guaranteed to be completely ineffective at protecting me from patent litigation from established players or patent trolls, never mind the cost of a computer. which is the better investment from the perspective of society?

i should be prevented from *copying* the work of others, but if i develop something on my own, i should be allowed to do with it whatever i want, from selling it without disclosing the source code to putting it into the public domain. there is an existing business model that fits this situation which has been in place for well over 100 years; it's called copyright. furthermore, copyright was successfully used by the original developers of computers and software for four decades. the copyright system has already been proven to work.

finally, anybody - layman or lawyer - who knows anything about software patents knows that businesses hold them to countersue those who sue them, or to sue potential competitors to drive up their costs, not for actual protection for innovation. software patents in *any* form are not the way to promote innovation!

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Flo

The Future Is Open Source Just As Nature OR The Sun :)

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Carlo Piana is a lawyer by training and a Free Software advocate. A qualified attorney in Italy, Piana has been practicing IT law since 1995, focusing his practice on software, technology, standardization, data protection and digital liberties in general, and serves as external General Counsel to the Free Software Foundation Europe ("FSFE"). Piana has been involved in some of the cornerstone legal cases in Europe, such as the long-running antitrust battle between the EU Commission and

Should I use a permissive license? Copyleft? Or something in the middle?