Subject: Re: Why software patents are bad
From: Bernard Lang <>
Date: Wed, 22 Sep 1999 09:21:18 +0200

On Sat, Sep 18, 1999 at 12:03:10PM -0700, L. Peter Deutsch wrote:
> One could argue that in software, just as competitors can work around
> copyright by recoding, competitors can work around patent by
> reconceptualizing.  I agree that as a practical matter, there is a huge
> difference in degree of difficulty.

True only if you assume that patents are given for real software
innovations rather than for simplistic ideas as is the case now.  I
have been talking to an IP lawyer who told me that for patenting, what
you accomplish is what matters more than how you do it. The example he
gave me is that if your system filters e-mail for some purpose, the
patent will cover the idea of mail-filtering regardless of how it is
achieved. In other words, if I understand him correctly ... which I
hope) it kills any incentive to develop a good mail filtering
technique since
  - if you intend it for the same application, you will be blocked by
    the existing wide patent
  - if you intend it for a new application, you might as well patent
    the wider (and usually trivial) concept of using mail-filtering
    for that purpose, and keep your actual technique secret (in object
    code + copyright + law against retro-engineering), or even not
    bother to develop it.

   No surprise we get stupid patents.

> This brings up an interesting issue underlying this discussion: what
> proportion of the work and/or the value of software is the concept
> (patentable), and what proportion is the code / expression (copyrightable)?
> It seems to me that the Open Source experience is that the major value is in
> the code (it is the code that the OSD protects), but the major work is in
> the concept (which the OSD doesn't protect, but patents do).

  True if only significant creations are patented.

> Thus if I were
> being uncharitable, I would say that the Open Source approach is attractive
> because it provides a way to deliver a lot of value while wanting to get a
> free ride off the hardest part of the work.  However, this is based on a
> belief that few (no?) patents have originated from the Open Source community
> and been embodied in Open Source software.  It will be interesting to see
> whether this changes as more Open Source authors are forced to apply for
> patents in order to defend themselves against the behemoths.  It will
> certainly change the economics of Open Source when the authors of any
> significant work have to spend many thousands of dollars on patent filings.

The hitch is that patenting is extremely expensive, to apply for and
to defend in court. So it is hard to reconcile with open source that,
while providing economic activity, does not generally create large
concentrations of monetary resources.

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