That anti-patent pamphlet I mentioned

Arnoud Galactus Engelfriet galactus at
Mon Dec 16 18:03:00 UTC 2002


Alex Hudson wrote:
> I also don't think that re-implementation of something is necessarily
> something that should be covered by a patent. 

But surely all imitators are re-implementing an invention?

> 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. 

Well, I also think that if you find a different implementation
of the same inventive idea in hardware, the patent holder should
be able to stop you. Just like with software. If it's a new
solution, you're in the clear. If it's just a different realization,
you're infringing.

> 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.

Ok, but when you say "implemented in software", you mean you
have a working echo chamber purely in software? Why should
you then not be able to patent that? 

> 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.

Well, what you're saying is that 'inventions' in software do
not actually exist until they're built in hardware. The
comparison with science fiction springs to mind: Star Trek would
not be prior art against someone building a matter transporter.
But if Gene ever had explained how you could build one, you
could no longer patent the general concept of matter transporters.

> 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.

I do not believe the field of software development itself
needs patent protection. I believe patents should be available
for technological progress, and should protect a patentee
against people making imitations of his inventive idea.

In my opinion, it should not matter *how* you imitate someone's
patented invention. If it is covered by the claims, you
infringe and you need a license. If you have a different solution,
great, you're in the clear. 

There is a class of software that can perform the same function
as certain hardware. This class should be covered by patents
if they are embodied in a device. Other software, which can do
things hardware cannot, should be outside the realm of patents.

To name an example, let's take MPEG again. When you make a
video compression technique, you can build it in hardware or
in software that runs on a general-purpose processor. The
patent should cover both, or none. Not just the hardware variant.

I personally believe the patent should cover both. Others here
believe the patent should cover neither. That's fine, but I
do not think it is logical that you can cover one but not the
other if it's essentially doing the same thing.

Kind regards,

Arnoud Engelfriet

Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies:

More information about the Discussion mailing list