Subject: Re: Novel anti-software-patent article
From: Bernard Lang <Bernard.Lang@inria.fr>
Date: Mon, 10 Jan 2000 18:19:58 +0100

On Sat, Jan 08, 2000 at 12:53:06AM +0000, Crispin Cowan wrote:
> Lynn Winebarger wrote:
> 
> > On 7 Jan 2000, Ian Lance Taylor wrote:
> >
> > > Crypto is a special case, though, which is why it is an interesting
> > > case to talk about with respect to patents.  If you keep the crypto
> > > algorithm a trade secret, people won't trust it.  (And, moreover,
> > > history shows that it probably won't be as strong as you think it is.)
> 
> Agreed.  This appears to be the original purpose of the patent process.  From
> the Webster definition of "patent":  "to be open, open to public inspection,
> ... readily visible or intelligible, obvious".
> http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=patent+
> 
> My understanding of patents is that the exclusive monopoly is granted in
> *exchange* for disclosing the invention.  Since the process was called
> "patent", it seems that disclosure was though to be a core benefit.

There are basically 3 reasons for patents... and keeping them in mind
helps the discussion.

Patent is a time-limited monopoly, i.e. a privilege intended to:

1- encourage invention by reward and allowing to recoup investment

2- encourage inventors to make the invention public

3- (and this is a more recent view) encourage investors to bring
inventions to market by making sure they recoup their investment.

With essentially the purpose stated in the US constitution:
"To promote the progress of science and useful arts, by securing
for limited times to authors and inventors the exclusive right to
their respective writings and discoveries."

just 2 or 3 remarks:

  technical investment is usually fairly low in software, and is
mostly brain, hence hard to locate on any single individual or group,
even though the actual "discovery" (not invention, mind you) may be
located.

  As for many sciences, the investment is spread over the intellectual
community. Actually bringing the (live) brain a native of country Y in
company or country X, in order to have him "invent" something with
little actual investment other than his salary, which then becomes the
property of X, is in my opinion stealing the investment of Y.

  Most software inventions cannot be kept secret, since the software
has to be distributed, and can always be decompiled in due time... and
always is when relevant (few companies will respect the law in that
respect, even now).

  Since investment is low for software, but patent protection is
outrageously expensive -- not just the cost of applying, but all the
legal and technical work, plus going to court when it really matters
-- patenting increases considerably the cost of going to market, and
hence is counter-productive.

  As a comparison, going to market with a biotech invention requires
hundreds of M$, and companies want to have some assurance that there
won't be too much competition so as to be reasonnably sure to recoup
the investment.

  Software creations comme mostly from small companies or individuals,
but patenting is favorable to large companies, thus helping to kill
the small one (who cannot afford applying or defending in court). Thus
patenting is also couter-productive in helping destroy the sources of
inventions.

  Sophisticated software techniques have been developed for 40 years
without any patent incentive. There is no reason to believe that it
would stop now. Actually a lot of useful and non obvious software
techniques are still being produced free of any patent, often much
more sophisticated and inventive than most of what is currently being
patented.

  Any complex program is likely to infringe on a patent. Patenting
makes it dangerous to publish innovative program, or to practice a
service activity improving complex programs.

  In particular, patenting encourages source code secrecy, since it is
much harder to prove infringement when the source code is not
available, especially since decompiling for that purpose would be a
copyright infringement.

  As to the nature of software, there is a well know result by Curry
and Howard, the Curry-Howard isomorphism, that states that a program
is of the same nature as a mathematical proof. Hence patents on
programs are patents on proofs.

  just a few thoughts ... but there is more where that comes from.

  see www.frepatents.org , see also papers by Jean-Paul Smets, and
others.


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