That anti-patent pamphlet I mentioned

[Alex Hudson]

Hi Arnoud,

On Sun, 2002-12-15 at 14:40, Arnoud Galactus Engelfriet wrote:
> Alex Hudson wrote:
> > [This is beside all the other arguments: I believe the economic one to
> > be particularly strong - software patents should not be given simply
> > because they are not needed.]
> 
> Let me just say that you make an interesting point, and I agree
> with you that this makes it very difficult to defend 'software
> patents'. However, are you sure you're making an economic argument?

Sorry, I should have been more clear about my addendum: the main point
of my email was the problem using "technical effect" when referring to
software. It is a very complicated argument, and, I think, requires
someone to know a lot about software and what it is before they
understand it fully. For me, the "patents are not needed economically"
argument is simpler to understand, and therefore stronger - it wasn't an
adjunct to my main argument :) The simple question is, "what benefits do
software patents give us?" - I believe it is extremely difficult to
argue successfully that there are *any* tangible benefits that would be
measurable (indeed, quite the reverse).

> For me, the economic argument is simply "software can be used
> to imitate hardware, so if software is unpatentable I can get
> around patents by simply using software instead". This is
> unfair to patent holders and hence software that imitates
> hardware should be protected by the patent.
> 
> This does not mean *all* software is patentable. Just the software
> that is used to imitate the behavior of a specific hardware design.
> And I guess that's what I'm trying to say with the technical
> effect argument: if the software achieves the same effect as the
> hardware would, it should be just as patentable.

I don't believe it is unfair. The person who has implemented something
physically (like the speaker cabinet) has something qualitively
different to someone with a piece of software. In fact, implementing
something like that as a piece of software is unnecessary - you're
developing complicated signal processing technology to replicate the
effect of 2EUR worth of rotary mechanism :)

I also don't think that re-implementation of something is necessarily
something that should be covered by a patent. Software gives us entirely
new ways of doing things, and it would not be the ground-breaking
industry it is unless it was obsoleting things. In fact, it's precisely
because it makes previously difficult things so easy that it's
interesting.

It's interesting that you have to fall back to the argument that
software doing the same (or better) job than hardware should be
prevented, since it's "unfair". To me, that's progress - when someone
finds a new, more efficient, way of doing the same job that's how
progress is made. 

The difference between software and physical devices also cuts both
ways. If I "invented" a type of echo chamber that was implemented
completely in software, I don't believe I should be able to patent it.
Let's assume that it was so clever that no-one - myself included - knew
how to build one physically, perhaps because I modelled some seemingly
magical material with fantastic properties.

But, if someone *did* eventually manage to recreate my device
physically, they should still be allowed to patent it - the fact you can
do something in software easily does not detract from the achievement of
doing something difficult physically. If we had your system, though,
where the achievements of software and hardware are directly comparable,
someone coming up with a radical new device would be prevented from
gaining patent protection for it, because I had already done it (easily)
in software. That, to me, doesn't seem fair - indeed, there would be no
incentive for a materials researcher to investigate my system to see if
they could make it physically.

The "technical effect" of doing something in software, as opposed to
creating a physical device to do something, is not easily comparable.
Patents should not be used to prevent progress, they should not be used
as an economic crutch so that ailing industries and outdated practices
can be propped up for a little longer. Similarly, the amazingly fast
progress in the field of software (which currently outstrips all other
industries, AFAIK) should not be allowed to prevent what invention
currently takes place in fields of technology now.

I would be interested to know what arguments you would put forward to
say that software is directly comparable to, say, electronics - other
than the fact that we colloqually refer to them as "technology", I don't
think that the results and inventions in electronics - new types of
transistor, etc. - have any relevance to software, and vice versa.

Cheers,

Alex.

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