All of the major innovations in software have occurred without recourse to patents. From the creation of the graphical user interface to the word processor to the web browser, consumers and society have benefited from the same ideas being used by different competitors.
Some readers might point out that you can only patent an “implementation”, not an idea. But, as Chris Bidmead points out:
In practice patent lawyers have always attempted to file in a way that generalises the implementation to the point where any practical use of the idea is covered by the patent – tantamount to patenting the idea.
Fortunately, we weren’t locked into using WordStar, the first commercially successful word processor, for twenty years. Even though no one owned the idea of a word processor, companies still entered the market, and Microsoft has been able to keep investors very happy with the money it has gained through being better than the likes of WordStar and WordPerfect. The competitors in the word processor market kept copying each others’ ideas, and that was great because it led to a race to the top. High spending on R&D was a prerequisite of staying in the market. Had WordStar owned a patent on the idea of computer-based typewriting of documents, or on important aspects of the word processor, we would all be worse off today.
Innovation in software occurs because of copyright, not because of patents. Copyright enables people to protect their work. But we are all better off – we all benefit from greater innovation – when companies are able to compete free from the shackles of (software) patent monopolies. Established, vested interests – most notably Microsoft – want to prevent competition. The European Parliament fortunately voted against EU-wide software patents. In order to increase innovation, surely it is time for software patents to be fully repealed?
Hmmm. Undecided on this one.
Surely if someone has produced something tangible (i.e. “real” – it hurts if you kick it) then they are perfectly entitled to protect their stock with security, walls, barbed wire, gun-toting alsatians and the services of the Police if some scumbag trys to help himself to some of the booty.
So if protection is OK for physical property then why not intellectual property?
Otis: One asymmetry is the fact that intellectual property cannot be stolen — only copied.
Why is it that we object to stealing? Imagine your car has been stolen. Are you angry because the thief now has a car? Or is it more accurate to say that you are angry because the thief now has your car, and you don’t?
What if the thief had a replicator borrowed from the Enterprise, and made a copy of your car and drove off in that instead? Would you feel angry then? Indifferent, perhaps? Or even happy that the “thief” now owns a car and so enjoys a higher quality of life?
I think this example shows that physical property and intellectual property are not completely analogous.
Otis,
Apparently you don’t understand the nature of software patents and how they relate to traditional IP protections. Software patents do not stop someone ‘helping himself to [your] booty’, they create monopolies, backed by the government, the police (whoever) over ideas. That sort of patentability is not only illogical, it’s also harmful.
Under the software patents system I can go out and patent the idea of clicking a single mouse button to purchase something (as Amazon did) or even a mathematical operator (as Microsoft did with its ‘IsNot’ patent). Amazon didn’t invent the idea of clicking on something to make a purchase (although they have their own implementation of this system) and Microsoft didn’t invent the idea of negation in software programming (although Microsoft Visual .NET features an ‘IsNot’ operator). It is absurd that governments should issue licences granting monopolies over ideas. Take blogging software as an example: MovableType, the software powering Samizdata.net, is protected by copyright law (so I can’t steal the code, claim it as my own and start selling it). That’s useful – it protects the work of the developers of MovableType. However, I don’t believe MovableType should be able to patent the idea of ‘web-publishing software’ – that stifles innovation – and what’s more, under the current American system, anyone with the resources could patent the idea of ‘blogging software’ – they don’t even have to have developed the software like MovableType!
The most immediate problem created by software patents is the emergence of companies that exist solely to accumulate patent portfolios and then start filing lawsuits against innovative and productive companies that actually produce and sell goods (physical or IP).
James A. H. Skillen,
Clearly the objection is not directly to the stealing of a piece of IP but rather the stealing of the time and effort poured into producing the IP.
The analogy you present to Otis is flawed because you make no mention of the work Otis might have put into developing the car. Otis might have spent years of research, vast amounts of money and lots of his own time producing that car that’s just been through the replicator. If Otis knows he can’t sell the car because someone will ‘borrow’ it in the middle of the night and put it in the replicator, he’s likely to feel like he wasted his time developing it in the first place and he won’t bother in future, which will surely have an adverse impact on innovation.
I think software patents are appropriate, but the time span should be greatly reduced to maybe 5 years or linked to some return on investment criteria. The ability to recoup investment in this field is greatly enhanced by the low manufacturing and distribution costs of software, so the patent period does not need to be extensive to reward investments of time and money.
By the way, the thief with a replicator example is severely flawed. Of course, I as the consumer who bought the car might not like the fact that the thief used my car as the template for replication, just as a consumer who has a friend who asks him for his CDs that he bought so that he can copy the music might not like paying for the music only to see his friends take advantage of his purchase. The consumer didn’t invest anything in the design, production, and distribution of the car, so all he will feel is that he is being used and a shmuck. The individuals or organizations who invested tens of millions of dollars in designing, testing, manufacturing, marketing, and distributing the car would be rather pissed that someone is getting their work for free. They would cease to investing their time and money in designing new cars if people could rip their work off for free, and thus from now on you would largely be stuck with the same base car model to replicator plus what ever enhancements that invidual car afficiandos think is worthwhile to add with their own time and money.
To make it clear I am talking about software patents regarding nonobvious and novel ideas and algorithms. I think patent examiners should be far more selective about what they issue. Of course there isn’t all the time in the world for an army of goverment paid examiners to review every single patent application and prior art. Perhaps we should take advantage of our litigious culture and use it to our advantage. Allow any party to sue a party for filing a patent for which prior art exists that should invalidate the patent and receive 5 or 10 times the patent fee from the filier. It would discourage indviduals and organizations from filing patents for frivilous things as it exposes them to added liability.
Software should not be covered by patents, only copyright. It’s a bit illogical to be able to patent a coded process, or in this case, a collection of coded processes.
What are you going to patent? Storing a variable? Using a table? If/Then Loops? These are all things that are in the public domain and have been since the inception of the coding languages used to create them.
Without software patents the computing industry has been the fastest growing and most susccessful industry in history (well, other than prostitution and drugs). Patents were designed to encourage growth, innovation, and secure a chance (but just a chance) for profit for the creator. The tech industry has no shortage of any of these.
Patents would actually do the opposite of what their intention is in this case. This, of course, means that governments will undoubtably be pushing for them.
Obligatory self-plug: Patents are an Economic Absurdity.
Otis,
to answer your question, to the extent that you believe in property rights to physical property, you cannot also believe in property rights to “intellectual property”.
I own a computer. If I am not allowedc to write whatever software I like on it, ans distribute it to others, my proprty rights are being diminished.
Encourage the idea of a software patent and I feel you are on a very slippery downward slope. Apart from the obvious deep legal arguments that would ensue, of who owns what original graphic or programme code, I feel you also endanger the ‘bazaar’ mentality that has helped to create most Linux or UNIX operating systems. Instead you would most likely end up with the ‘cathedral’ mentality so prevalent at corporations such as Microsoft, and being supervised by patent attorneys as to what code you can include or omit.
As for WordStar I never liked it – AppleWrite was so much nicer to use (and came out in 1977 as I recall), and gently progressed over the years through AppleWrite2, MacWrite and WriteNow! up to MacWrite Pro where it sort of fizzled out into Claris/Appleworks.
Patents are anti-competitive, they’re supposed to be. I personally don’t have a problem with patents, but patents (in the US at least) are supposed to be novel and not obvious to other experts in the field, and it seems to me too many patents don’t meet that test.
I’ve never particularly had a satisfying explanation of why if the EU doesn’t have software patents that the German Fraunhofer Institute has so many European patents with the European Patent Office for mp3 technology?
Just for your information, it wasn’t luck that did it. The final result in the Europea Parliament had only 14 peopl supporting patents, mostly people who were financialy linked to foirms of patent laywers.
The reason for this political wipeout was the hard work donme by a small lobby group(Link), who with almost no cash lobbied bvrazenly, and effectuvely for about 6 months.
In 6 years working in and around the Parliament I have never seen an effort like it. (The first 4 months it was a one man(Link) show)
Just for your information, it wasn’t luck that did it. The final result in the European Parliament had only 14 MEPs supporting patents, mostly people who were financialy linked to firms of patent lawyers.
The reason for this political wipeout was the hard work donme by a small lobby group(Link), who with almost no cash lobbied brazenly, and effectively for about 6 months.
In 6 years working in and around the Parliament I have never seen an effort like it. (The first 4 months it was a one man(Link) show)
I write programs for a living, and I can honestly say that I would never want to patent any of my work – copyright is more than sufficient.
I see the kind of software patents that are granted all the time in the U.S. and it is obscene. The most obvious ideas get patented despite years or even decades of common usage. Prior art counts for nothing if you can’t afford the lawyers to press your case – and if you’re taking on a company the size of Microsoft they will simply spend you into bankruptcy and then claim the patent has been upheld in court.
Allowing software patents is just another form of thought control – it allows big companies to control what ideas you are allowed to think about and use. They will stifle innovation and hence human progress, and must be opposed to the utmost.
I was involved in trying to get a software patent once, it was a horribly time consuming and beuracratic process, it stopped me doing my usual work and for 1 or 2 months, it was so unpleasent I left the company.
They also made it perfectly clear that the idea had to be worth more than $500,000 to the company, and that I would get £500. This made me feel like I was being ripped off since I felt it an extremely unbalanced trade.
It’s a bit debatable that MS got to their current position of dominance in the Word Processing market by being BETTER than Wordstar or Wordperfect. iirc the early versions of MS Word were pretty awful.
What really got them there, I think, is the fact that they owned the Operating System and could (and did) keep moving the goalposts so that other peoples’ software didn’t work properly.
Some might call that “dirty tricks”. Some might view it as legitimate. But competition it wasn’t.
While I’m not decided on the issue of software patents, why not abolition in the same manner all forms of patents?
Software is quite different from works originally intented to fall under copyright laws. Essentially the copyright covered in all practice and purposes the source code (i.e. the blueprint) not the actual implementation when it is compiled (i.e. assembled). After being compiled, it is available in a physically tangible form, albeit in parts of your handdrive/ROM/RAM/CD-ROM/DVD/etc.
And I wouldn’t quite say the reason why Microsoft Word lacks any viable competitors is because Microsoft blocks competitors from entering the market. If that is so, why is it that Word-alternatives fail to materialize in countries like Germany and UK where software patents don’t exist?
Then should the goal ought to reform the patent system to be more effective (using technical industry terms instead of legal-speak, for one), instead of abolishing an sector of patents? Patenting of ideas occur in other industries too, industries where it isn’t on grey areas like automobile engineering, genetic engineering and the likes.
Of course there has previously been a test of a software patent, of sorts, in the ruling over British Telecom’s attempt to garner royalties from use of the hyperlink.
Phil Hunt: Correction, you own your computer. You license your software. Before you use any software, you most probably agreed to some license or the other. In other words, even for free-wheeling open source programmers releasing their source code under BSD licenses, or heck, even under public domain – you don’t own the software.
You can buy it though. Depends on whether the company that owns it wants to sell it and at want terms. After that, you are able to do whatever you want to that software because you *own* it.
You can park your car rental in your garage. Does that diminish your property rights with the garage, even though you don’t own the car?
Quasi: You can’t patent a programming language – just how your software implements an idea or innovation. In other words, if I patent the implementation of, say, some sort of algorithm used to achieve a certain result, say in a manipulation of a graphic, that patent should theoretically apply though matter what programming language you use.
Do remember, in software as in other industries, you don’t patent the blueprints or the source code – rather you patent the implementation.
Andrew Duffin: Microsoft Word was originally not a Windows application – it’s first version was for the Mac platform. In fact even until today, Office doesn’t have a native interface for its Windows version, just a lame attempt at emulating it.
In addition to that, all Office versions are supposed to be by company policy fully compatible with all supported Windows versions. Which means it would take years for Office to take advantaged of that moved goal-post. As for Windows backwards-compatiblity, unless Microsofts competitors used an unsupported workaround, Microsoft has the best record for backward compatibility in the industry (Apple, on the other hand, breaks backward compatibility frequently, even between point releases, especially since OS X).
Word succeeded against WordStar not because it is better – in a free market situation, being better is not the only explanation to being successful. It was successful because it was significantly cheaper and it tied with Excel (WordStar didn’t have an Excel equilevent, neither, at that time, did Lotus 1-2-3 vis-a-vis for Word).
In other words, it was successful because it managed to fulfill market desires in the manner better than their competitors.
And I would disagree that Microsoft lacks any competition with Word – many of the features it has in the latest few versions first appeared in competitors like WordPerfect and StarOffice. If Microsoft was a de facto monopoly, they need not bother with adding those features to remain competitive.
I don’t think you can say software has a physical form. Yes, you can burn it into ROMs, so that there is a physical thing that records the software, but that _isn’t_ the software itslef, in the same way that a physical copy of a book, isn’t the book itself. We don’t talk of patenting a physical book, we talk of copyrighting the book.
The same should be true of software.
But the real failing here is the patent system. If patents were actually examined before being granted, many of these problems would be solved. Instead, all patents are granted, and must then be contested in court if a company thinks the patent is invalid.
I’ve no objection to a new thing, perhaps similar to current patents, being invented for the benefit of software companies. But applying patents in the broken, abused form the now exist, to a new area for which they are even less well suited, would be pretty stupid.
There is a little flaw (or under-analysis) in the physical versus intangible values in that I don’t think anyone would like someone to stop by and take a sledge hammer to either their car or their computer. The point being it is not only the physical presence of valuable property but how it is composed, and one might say that they greatest amount of value is in the composition, not the raw material. Unless you have the ability to recast the shattered remnants back into valuable property, then it is basically the ideas and knowledge of composition that has been “stolen” (i.e. that incremental amount you were willing to pay to another who composed it).
The question really is not what has already been composed, but preventing someone from applying knowledge and ideas to another set of raw resources and comprising their own. But it still remains the the value is in the IDEA not the raw resources themselves (any car crushed into a one-foot cube is probably not worth a whole lot). Preventing someone else from applying knowledge, IMO, requires a level of force that is not acceptable to libertarians. It strikes directly at thinking and behavior and value judgements, and ultimately makes the artifice of government the prime mover in technological advancement.
From what I have seen, mankind advanced regardless of artificial boundaries implemented by force. Also, such boundaries have done little to prevent existing capital from absorbing advancements made. The scheme just places the capital under the purview of the laviathan. Which is more socialistic, knowledge moving to “public domain” or a huge edifice dictating who can do what? And even if it were true that “advancement” would stagnate without protectionism, I’d rather live in a world with a lack of “advancement” if it also meant a decrease in coercion.
One last comment regarding ‘replicators’ is that if such technology existed, it very well might change the value of certain knowledge and whether it should be protected. Obviously advancement is still taking place, hence the replicator itself, and the efficiencies still possible in its design. There are all sorts of technologies that have become near valueless due to its commonness. Advancement doesn’t occur because of luddite protectionism of the old processes.
This is a very difficult area.
Many patents claim an idea and/or one or more implementations. If a hardware implementation can be patented (as they currently can) would a software implementation avoid the patent?
There is also a fuzzy dividing line between hardware and software – FPGAs are probably the most obvious example. Is an FPGA implementation hardware or software?
[For those without an electronics background FPGA = Field Programmable Gate Array. An array of hardware elements (gates) which can be configured (and reconfigured) to be connected together in various different ways by 'software', thus mimicking a 'true' hardware implementation].
Even most digital hardware is designed and described in software using hardware description languages such as VHDL or Verilog. At what point does such a design change from software to hardware? There are various design stages between these languages and a piece of hardwired silicon.
I think these sorts of problems (patents, regulations on research i.e. animal testing, stem cell) will rapidly become self-resolving – some countries will implement them and suffer the sudden decline in R&D expenditure, others will not and profit.
I can seriously see most of the worlds biotechnology research happening in strange little countries that have better things to spend their money on than such legislation – and software could well go the same way.
In the USA, this has already happened with Stem Cell research, in the UK it’s happening with biotechnology due to our chronic inability to deal with animal-rights-terrorists.
These things sort themselves out in the end – hopefully!
Somewhat, though not completely true. Before a patent is issued, there is a chance for the public to submit prior art. The thing is that all this happens rather quietly with few paying attention. Plus, many companies apply for dozens of patents, making it somewhat impossible in the current system to check them all.
The main issue against stem-cell research is that the embryos destroyed in the process are human beings – persons in an early development stage. What can be made out of stem cells – cures for this and that – is immaterial to them (and me) for the same reason why we would ban death-causing research on 5-year-olds even though it may cure some serious disease. We, right-wing Christian Taliban nutjobs, can’t dehumanize embryos into convienient labels like “lump of cells”.
It is quite different from the software patents issue.
But I must ask, why is it America is still leading the software industry after some 2 decades with software patents? Or why Israel has a vibrant software sector even though it is one of the few countries where you can apply for software patents – albeit more restricted?
In the USA, this has already happened with Stem Cell research
Which is another interesting case of the “where do libertarians find themselves” variety. In the USA, Embryonic Stem Cell research is not illegal. There has been no attempt to make it illegal, either. The Federal Government has simply refused to spend money funding such research that causes new embryos to be destroyed. And yet quite a few Libertarians get up in arms begging for more State intervention in science research and more state funding, being motivated by the principle that a moral objection should never be part of the State’s unwillingness to fund research.
And, in reply to several comments here, it’s quite clear that the UK and Germany, among other nations, have granted software patents, for mp3 decoding among things. Are all these granted in error against the rules?