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posted by janrinok on Thursday June 07 2018, @01:39PM   Printer-friendly
from the EU-got-something-right dept.

Gervase Markham has a thorough blog post about a case for the total abolition of software patents. He makes his case based on their complete lack of promotion of innovation and aims at identifying the principles involved. The feasibility of eliminating them may be a ways off due to the heavy politics involved so the idea may seem like a very distant policy possibility.

One immediate question is: how does one define a software patent? Where is the boundary? Various suggestions have been made, but actually, this question is not as important as it appears, for two reasons. Firstly, if we can demonstrate that there is a group of clearly identifiable patents which are harmful, or harmful when enforced in particular situations, then we can adopt the principle that such patents should not be granted or should not be enforceable, and where one draws the exact line between them and other patents becomes a secondary, practical, definitional issue beyond the initial principle. Secondly, some methods proposed for dealing with the problem of software patents do not actually require one to define what a software patent is. For example, one proposal is that one could change the law such that no program written to run on a general purpose computer could ever be said to be infringing a patent. In this case, you need a definition of "general purpose computer", but you don't need one for "software patent". Given these two points, I don't intend to spend time on definitional issues.

Currently software patents are a problem affecting the US and prohibited in the EU due to Article 52 of the European Patent Convention in 1973 (EPC). However, they are currently being pushed by the European Patent Office (EPO) in the name of "harmonization" despite being invalid. Many consider the fact that Europe remains unafflicted by software patents to be a moderating influence on the US market, holding back a free for all.


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  • (Score: 2) by melikamp on Friday June 08 2018, @04:24AM

    by melikamp (1886) on Friday June 08 2018, @04:24AM (#690197) Journal

    To add to this lucid analysis, we could as well start from a different position entirely, if we want to be fair, that is, and if we accept that the only useful patent law is the one which actually benefits the public, as opposed to a very small percentage of individual inventors and a few patent-hoarding companies.

    The patent law, regardless of its stated purpose (here in US, to "promote the progress of science and useful arts" and yadda yadda) can in fact only be directly applied to stop the sharing and implementation of useful ideas, which is painfully apparent in every single court case involving patents. A patent is a state-granted monopoly on manufacturing and selling certain kinds of products, and as such, it is antithetical to both the free market philosophy, whereas manufacturers of consumer goods compete on level ground, and the notion that the cultural/scientific heritage should be communally owned and freely shared. The burden of proving that patents do anything at all for progress/innovation of any kind should be on the patent proponents. Ideally, we need to abolish patents immediately (though it's OK letting the existing ones to expire normally) and have these clowns run a test in one particular state, say, Texas. Enforce patents in Texas and nowhere else, and wait till it surges ahead in innovation.

    If this idea sounds laughable, it's because it obviously won't work, and will almost certainly have dismal consequences for both the state of R&D and the consumer goods prices in that state. And in fact, judging by all the economics research I ever came across, patents seem to change the kinds of innovations (think industry focusing on symptom relief instead of cancer treatments, and in general on things which maximize profits via patents), but not the quantity of innovations. Whatever studies have been done, they seem to indicate no effect or slight negative effect (read: patents are slightly bad for innovation). So the only sensible course of action is it take them to the curb as soon as politically feasible.

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