Software patents: They're back!

xdrudis xdrudis at
Mon Feb 6 20:49:40 UTC 2006

El Mon, Feb 06, 2006 at 03:06:13PM +0100, William New deia:
> Hi, just wanted to add a couple of things to the discussion for whatever
> they're worth. I've been meaning to contribute another argument made by
> Guenther Schmalz of SAP at the recent lobbyist meeting in Prague reported in
> Intellectual Property Watch
> ( and
> mentioned in Heise. He said software development is "not cheap" because they
> do coding and testing, while "free riders" will follow. "Those who innovate
> need patent protection, imitators don't," was his message. 

Well, saying that is "cheap". The result of coding is code and the result of 
testing is higher quality code. Code is already covered by copyright. Patents
don't cover that, patents cover general principles or patterns, ideas. 
In software having ideas is really cheap, compared with patentable fields,
because computers follow precise mathemathical models, so in a way we 
already know what can be done. The difficulty is not knowing something can be 
done, but doing it and doing it well (or at most foretelling how much effort
will take to do it). And that effort is what copyright covers. In order to 
ask for a patent you only need the idea, there is no need to have anything coded
nor tested. In fields requring empirical research things are different. In order
to get to the idea that will work you need to discover how a little protion 
of the real world works (and you don't have exact mathematical models for that,
just aproximate theories to guide your observation), and then you need to build 
and test prototypes, etc. There's a material cost to innovation in addition to
the intellectual cost.

In software "free riders" can only copy the idea, the general
features, and in order to copy them without infringing copyright they
need either the permission of the author or an amount of work similar
to the original coding. The difference is too much for getting soon
enough to market, since the original author did it first and software
does not live long. So the only way to market similar software is by
adding features, quality, etc. That's called competition, not free

Those who innovate need the possibility of doing so legally, without having to 
pay royalties to those that patent ideas instead of innovating. 

> He also said that had 1,948 companies, representing
> 31,503 employees, and 3,258,244,082 EUR turnover, while SAP in Europe is 20
> companies with 20,000 employees, representing 7,514,000,000 EUR in turnover.
> His point was to question the economic majority argument. 

Companies like SAP represent a tiny fraction of software development. Most
programming is done in software SMEs or in house in computer departments
of firms in other fields. So SAP and its 20000 employers is not significant. 

But anyway, I'm preaching to the choir, here. 

> I also would like to clarify that Intellectual Property Watch (cited as
> ip-watch below) does not formally take a position on software patents in
> Europe. We are trying to report on the process in the name of transparency
> but are not actually engaging in advocacy. Best, William New, Editor


- jo també vull una Europa lliure de patents de programari  -
 EuropeSwPatentFree -

Xavi Drudis Ferran
xdrudis at

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