That anti-patent pamphlet I mentioned

Niall Douglas s_fsfeurope at
Fri Dec 13 15:41:44 UTC 2002

On 11 Dec 2002 at 13:22, Arnoud Galactus Engelfriet wrote:

> > I was using "implementation" in its software context ie; the
> > software code itself. This would equally apply to the design of the
> > circuits of the hardware because as you previously pointed out,
> > there is considerable scope for the dividing point between hardware
> > and software in an overall system.
> Can you make a definition that makes the distinction clear? I don't
> get any further than "the software is the bits you can't kick if it
> doesn't work". :-)

It's a fundamental but common mistake to assume that just because 
something cannot be seen or touched that it doesn't not have integral 
worth. A piece of software is still useful where it has accompanying 
hardware or not, just as the designs for a piece of hardware or a 
house do.

On the other hand, the formulae and theory for software, hardware or 
a house (eg; insulation stops heat escaping) should be free.

I appreciate everyone on this list attempting to draw artificial 
lines between things and in the whole I support however much 
artificiality which is good for the market. However, philosophically, 
software and algorithms simply can not be identical and by thinking 
them so, one introduces much confusion and discord as is usual from a 
fault in the underlying logic.

The entire existance of software patents is a direct result from this 
logical mistake. Everyone is running around chasing their tail while 
we get it in the neck because of this fault in logic.

> > Now if we used this correct form of "implementation", I would 
> > infringe on MPEG2 patents during my implementation only if my 
> > software or hardware bore a striking resemblence to another existing
> > implementation. This is *separate* from the algorithms.
> Well, I think for infringement it would be sufficient if your program
> carried out the same steps as the patented technique. But yes, usually
> this means there is some degree of similarity.

The acid test in my view of whether a patent should apply is if there 
is a striking resemblence. So for example, if Dyson patented his 
vortex vacumn cleaner then nothing should prohibit anyone else using 
a vortex in their vacumn cleaner so long as it's substantially 
different from the way he employed his vortex. I know this isn't the 
case in reality, but it should be given the founding principles of 
the patent system.

> > Obviously, with some care, there can be near infinite
> > implementations of identical algorithms just as there can be near
> > infinite implementations of a pump. Thus, the MPEG2 patents are
> > precisely the worst kind of patent much in the same way as patenting
> > all possible pumps is a stupid idea.
> This is actually exactly what happens when somebody comes up with a
> new hardware widget. In the early 1900s, the German company Singer had
> the patent on the sewing machine. Before that, there were several
> patents supposedly covering the steam engine, and development of
> steam-based engines didn't take off until the courts determined which
> one was the steam engine patent. In 1907 an American invented the
> supermarket and patented it. The transistor, in all its shapes and
> forms was patented, and nobody could use a transistor without paying
> royalties to Bell. There is still a big fight going on about who owns
> the patent to the semiconductor.

These are all good examples of what is bad for society. Patents 
should be there to encourage entrepreneurship because *that* is good 
for society. If one were to go with complete bans of all competing 
devices (for simplicity purposes), then a variable length maximum 
duration should be in effect. For software, I think three years - for 
something like vacumn cleaners, possibly ten. Twenty years for 
everything is too much.

> > If you don't get what I'm on about and how I'm making this 
> > differentiation, please see 
> >
> > December/003514.html. It's effectively about the difference between
> > an ideal thing and the thing itself.
> I'm sorry, that message is a bit difficult to follow for me.

Given not a single person challenged me on it, I guess it was for 
everyone else too.

> > On the specific design of circuits and wiring yes they should be
> > permitted. But the current situation where it's impossible to
> > implement MPEG2 in hardware without infringing a patent indicates
> > the definition of "implementation" is wrong - this is more patenting
> > the "generalised solution" than specific implementation.
> This is normal in the patent world. If you're the first to come
> up with a widget, you patent the widget itself and no one can use it
> no matter how they improve it or what particulars their implementation
> involves. The steam engine. The sewing machine. The supermarket. Heck,
> even the light bulb was patented in its most general form.

Just because it's done everywhere doesn't mean (a) they're right and 
(b) that the entire system is wrong. I think the basic idea is sound 
but it's been abused greatly and misapplied to the wrong things. It 
needs reform overall sure, but I as a software engineer am most 
concerned with software.

> > No, you could still get patents for your specific implementation
> > which if it's the best and cheapest, others will licence it from you
> > and you get your money. No one else could sell a facsimile for
> > example, but they could sell a similar solution.
> > 
> > This would encourage competition and improved quality.
> Encouraging competition and stimulate rip-offs, yes. If a patent
> cannot protect you against differing implementations of your
> invention, it is of little use. Other laws are already available to
> protect against people making copies of your device. The whole idea
> behind patent law is to give you protection for your technical idea.

I wasn't aware that there is any other law preventing say Dyson 
producing his vacumn cleaner and then Hoover replicating the exact 
design but sold for fifty euro less? I had thought patents were the 
only thing preventing direct copies?

In my view, there should always be scope for competitor improvement. 
The reward still remains high enough for the inventor to keep them 


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