🚀 go-pugleaf

In article <58757@bbn.BBN.COM> cosell@bbn.com (Bernie Cosell) writes:

   As always, there are two possible threads intertwined in a discussion
   of software patents, and the anti-patent folk rarely make their
   position clear: do you argue that *all* patents are counter-productive
   --- that we should unlock America's creativity with a constitutional
   amendment to undo patenting?  (That is, by the way, an arguable
   position: there _are_ arguments that, overall, patents harm society
   more than they help it.)  OR  are you arguing that _software_ patents,
   specifically, are a problem... in which case you have to justify pretty
   clearly and persuasively why software is so special.

OK, I'll take a stab at it.

Very briefly, the software patent situation as it presently exists is
on the verge of preventing the creation of small software companies.
It also threatens the existence of many existing such companies.
Since small business is responsible for the creation of a large
percentage of new jobs (and new industries) in this country, the US
has a strong national interest in encouraging such businesses.  This
is the official rational behind such bureaucracies as the Small
Business Administration.

There are several reasons why the current software patent situation is
so threatening:

    1. The computer industry existed (quite well, thank you) for over
       30 years without patents.  When software patents were allowed,
       there was a flood of patent applications.  Many of these were
       granted even though they were clearly invalid by reason of
       prior art or obviousness.  At the instant these patents were
       granted many existing products (released or not) became
       vulnerable to expensive lawsuits.

    2. No one knows what software patents exist.  Patent searchs in
       this area have proven to be unreliable as well as prohibitively
       expensive for small businesses.

    3. Neither the Patent Office nor the courts have the technical
       background to properly evaluate software patents.  Several
       patents have been upheld by the courts despite direct testimony
       of prior use or blatant obviousness.

    4. A typical program contains many techniques and algorithms.
       These change as the program evolves.  Every one of these could
       now be an unknown patent violation.  Attempting to conduct a
       patent search before every modification to (or bit of design
       of) a program will slow the development of US software by
       literally several orders of magnitude (think, how long did it
       last take you to change the data structure for a lookup table,
       how much longer would it have taken if you had to wait a
       several weeks or months for a patent search first).  Failing to
       conduct such searches opens the author to unlimited financial
       liability in the forms of: legal fees, non-negotiable royalty
       fees, compensatory damages, etc.  Imagine what the industry
       would be like if it took as long to create a new program as it
       does to design a new automobile.

    5. These are not speculative scare stories.  There are now
       companies in existence whose sole purpose is to collect
       money from a software patent (e.g. the company that claims to
       hold a patent on xor cursor writing and is threatening to sue
       all the vendors of X servers).  As a side note here, not only
       has an English company gotten a patent on airbrushing,
       stenciling, and combination of two images under control of a
       third one, but their spokesman said that they had no plans to
       improve their product (already functionally inferior to its
       competitors) now that the court had put their competitors out
       of business (Computer Graphics World, sometime in the last two
       years).

#pragma POLEMIC ON

If you want to ensure that only companies the size of IBM, General
Motors, and AT&T can afford to write software products support
software patents.  If you want to hand the entire future of the
software industry over to countries that will not allow their lawyers
to strangle their economies for short term gain support software
patents.  Otherwise fight this mess before it smothers your profession
completely.

#pragma POLEMIC OFF

In any case, everyone please read the League for Programming Freedom
position paper "Against Software Patents" so that we can continue the
discussion from there instead of going over the same basic facts again
and again.



--

                                            dan

In real life: Dan Pierson, Encore Computer Corporation, Research
UUCP: {talcott,linus,necis,decvax}!encore!pierson
Internet: pierson@encore.com