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     After reading many postings on "software patents," I have yet to see
such patents treated positively.  Nevertheless, the issue is hardly as
clear as it may seem; there are reasonable arguments FOR software patents:

The Purpose of Patents
     Clearly, the original goal of the patent system was to convert hidden,
secret ideas and technologies into (eventual) public information.  Because
it is difficult to profit from ideas which have been openly published,
inventors were encouraged to publish through the grant of a limited-term
monopoly on the manufacture, distribution, and use, of their invention.

     When we look at the current state of software, it is true that some
amount of software is available as free source code.  However, it is also
true that MOST commercial software is NOT open.  Such work is either
available only as object code, or only after the execution of trade-secret
contracts.  Most programmers do not get to see the work itself (the source
code) and much of this work eventually dies when the product dies.  My point
is that the current state of software distribution has a lot in common with
the original purpose of a patent system.

Secret Software Inventions
     Because many new software ideas are expressed only in trade-secret
source code, they are not publicly disclosed, and thus do not prevent the
issuance of future patents on that invention.  Such patents are not some
wierd problem in the patent office, they are the natural result of keeping
our best and most-innovative software under a veil of secrecy.

     It seems passing strange that many programmers are willing to support
trade-secret protection (which hides new ideas for as long as possible), and
yet oppose patents (which are inherently public and have a limited term).
In practice, trade-secrecy is little protection against big firms, who have
the resources to disassemble a lot of code, but is fairly effective at
hiding information from independent individual programmers.  Thus, trade-
secrecy is a way for large software firms to share secret information
among themselves, to the exclusion of small firms and individuals.

Reward the Risk which yields Success
     It is difficult to imagine a process which would give more
"power to the people," than a monopoly on the result of work which an
individual defines and supports on his or her own.  It is similarly hard
to imagine what more the government could do to support a tiny business
beyond giving them a legal monopoly on the results of their research.

     I HAVE been irritated at the concept of largely tax-supported and
non-profit institutions acquiring patents on THEIR work; I think they
should publish, thus making the work available and the patent moot.
But this is a complex issue.

Software Patent Propaganda
     Many postings have used the fear-based arguments advanced by the
so-called "League for Programming Freedom."  These include the fear
that individual programmers will be unable to function in an environment
of patented ideas.  But patents are ECONOMIC entities; they almost never
impact the use of programs which individuals write for themselves.  And
when programmers work for a software firm, patent licensing is one
requirment among many in the normal course of manufacturing and
distribution.  So we are left with those programmers who wish to use
patented inventions in their own work, and then publish that work, without
arranging licensing agreements.

     We are talking about distribution, not research, nor individual use,
but rather sales (money), or impact upon sales (free distribution).  Can
book publishers pick up articles from writers and publish them or even
give them away (free) without compensating the authors?  Do we expect that
artists or musicians will be compensated for their work, EVEN IF the result
is given away (do radio stations pay ASCAP)?  Should programmers be treated
as legally inferior to writers, artists and other creative individuals?

The Hardware Model
     Hardware companies have had to live with hardware patents for many
years, but only rarely fail because of patent disputes.  Economic
conditions and management expertise are far greater risks than patent
issues, so why should we expect patents to hurt software firms?

     Would small software firms be better off without software patents?
Competition against the giants is a far greater risk and expense, and a
patent is exactly the sort of thing that could help restrain those giants.

Is Software Different?
     After considerable thought on the issue, based upon my professional
experience in and around the design of production microprocessors (I was
one of the architects of the Motorola MC6809), I no longer believe that a
software mechanism is different from a hardware mechanism in any real sense.
We are all familiar with the ability to trade-off software for hardware;
this should be a hint that we are dealing with a single entity.

     Software cannot do ANYTHING which the underlying machine cannot do;
software can only SELECT from those particular operations which have been
built into the physical machine.  Naturally, large numbers of such
operations, in particular sequences, can produce many strange and
wonderful effects.  But these effects are ONLY the consequence of the
selection of individual hardware operations.

     When software is executed, it must be present in a machine in a way
that the machine can sense (it is not writing on paper anymore).  Such
software is no longer literature, no longer intended for human reading,
but is specifically intended to control a physical machine.  The whole
point of software is to create a physical effect (even if only voltage
changes in some internal store).

     Software can be open literature in the same sense as mathematical
formulae; similarly, simply reading the schematics of a patented machine
is not a patent violation.  But, clearly, the main purpose of software is
to select hardware operations; that is, it is INTENDED to make actual
physical changes which may be like those of a patented hardware system.
Because of this, it is difficult to argue that software does not intrude
upon on the patent rights which we expect to apply to hardware.

Unsuspected Implications
     Because of the ability to trade software for hardware, any attempt
to outlaw "software patents" may lead to currently-protected hardware
mechansims being implemented in on-chip "firmware" or microcode, to
avoid hardware patent protection.  Thus, proposals to exempt software
may radically affect the entire system of patent protection for hardware
mechanisms, including the computer designs we know and love.

Further Reading
     My article "The Politics of Software Patents" is published in the
still-current May/June issue of Midnight Engineering (111 E. Drake Rd,
Suite 7041, Fort Collins, CO 80525, (303) 225-1410).  This may be worth
picking up, IF you are interested in a view from my side of the issue.

 ---
 Terry Ritter   cs.utexas.edu!cactus.org!ritter   (512) 892-0494