Subject: Re: US Software Patents Hit Record High (fwd)
From: Brian Behlendorf <>
Date: Mon, 25 Sep 2006 20:25:28 -0700 (PDT)

On Sat, 23 Sep 2006, wrote:
> Brian Behlendorf writes:
> > And the $64,000 question: if software could not be patented, how much of
> > the work done that resulted in the patents would not have been
> > done?
> > My guess: it would have made no difference.
> My first guess is that a lot of the work would not have been done.
> Specifically, a lot of documentation would not have been written.
> Much of that documentation isn't useful for real work, of course, but
> I bet the authors could turn out real documentation pretty quickly if
> license revenues were on the line.

I'm confused - are you saying that patents essentially form useful 
documentation to the ideas that arise from solving problems, and are 
therefore more re-usable as ideas to others, and therefore worth the cost 
to society that a patent grants?  We have plenty of examples of 
documentation written for pay covering unprotected code, in the form of 
all those books on open source software.  I am sure you're not saying that 
implementors decide to use someone's patent based on the quality of the 
documentation of existing code that implements that patents...

> My second guess is that a lot of work would have been redirected from
> products where software ends up in the hands of users doing data
> processing to products where data ends up in the hands of ASPs.  Not a
> pleasant bias.

Because software that exists on the client desktop can be decompiled, and 
someone's "secret sauce" would become plain?  I suppose, but I can't 
imagine there being a *faster* migration to ASP-style software than we are 
currently seeing today.  Today nearly all software vendors are pushing 
their customers in that direction, and it's the customer reluctance to let 
their data be stored and manipulated outside their enterprise that limits 
the adoption rate.

> My third guess is that a lot of the work that was inhibited by fear of
> submarine patents would have been justified in that fear by the
> existence of prior work---and therefore (in a frictionless world)
> shouldn't have been done anyway.

If we had no software patents, how could the fear of submarine patents 
been justified at all?

> My fourth guess is that "friction" is substantial enough that any
> reasonable attempt to measure these effects will show that by far the
> most important effect is that many products that could have been
> brought to market never get there, while very few additional products
> (including "patent licenses") are generated by the patent system, and
> the effects of redirection of work are relatively minor, too.

Sounds pretty damning.

> Anybody interested in getting those measurements done?  (They probably
> do need to be done, but it might just be a matter of knowing where to
> look.)

This paper looks promising: