Subject: Re: Is free software innovative ?
From: Bernard Lang <>
Date: Wed, 13 Dec 2000 10:37:45 +0100

On Tue, Dec 12, 2000 at 11:37:12AM -0500, Jonathan S. Shapiro wrote:
> > Hi,
> > 
> >    a common argument that I see against free software (and used as a
> > justification to ignore free software when discussing software
> > patenting) is that free software is not innovative.
> > 
> >    Innovative means : containing stuff that could have been patented,
> > according to a rather strict application of the novel and inventive rule.
> > (not the USPTO garbage criteria)
> Bernard:
> I don't want to engage on the question you asked, because I believe that
> it is fundamentally misframed. For the answer to make any sense, you
> must also ask how much *proprietary* software results in innovation and
> compare the two. The answer closely approximates "none" in both types of
> software. Innovation occurs in both models, but innovation is by
> definition an outlier event. Also, please take note that the patent
> system does not actually perform the strict test that you suggest, so if
> we are trying to understand the impact of European patent legislation on
> open source we must ask "how much free software is patentable" as
> opposed to "how much free software is innovative?" On the "how much is
> patentable" question I'ld suggest that since roughly none of the patents
> issued in the U.S. or Europe have any merit at all the answer should be
> about the same in both cases.
> If we have to live with patents, it would be a big help if filing a
> patent later determined to be non-innovative had the side effect that
> you had to pay the costs incurred by the party who caused it to be
> thrown out. This would be a big disincentive to spurious patents.

yes ... all the costs, plus a reward to the patent buster, so as to
give theman incentive.
   Actually, I do not see why the patents offices are not private
organizations ... responsible for the quality of their work.

> That said, there is another way to approach the question that *does*
> look at fundamental innovation, which is to ask "Where is disruptive
> change more likely to happen?" The answer is open source. The reason
> follows.
> Disruptive change involves upheaval to an industry, and therefore
> threatens established revenue streams. Startup companies can do them
> because they have no revenue streams to threaten. Established companies,
> as a rule, typically will not undertake disruptive efforts unless they
> can do so as part of a migration of an entire industry. "Innovation
> fixing" is what standards bodies are really about from the perspective
> of a large company.

interesting economic arguments

  though not specific of software

However, while the anti innovation effect of patents exists in all
areas, they are stronger in software because any invention ignored by
large corporations can be implemented and distributed easily by
individuals or small groups, notably as free software. Patents is the
only way to prevent that, while economic barriers alone (together with
corporate non-aggression pacts) would be sufficient in other technical

> By building a cross-company consortium as we are doing with the EROS
> effort, one accomplishes several things:

is it EROS or eCos (which seems to fit the description)

> 	1. Spreading the risk
> 	2. Spreading the cost
> 	3. Ensuring community among commercial players
> The last replaces the function of standards bodies, which are inherently
> conservative by design.
> My point is that this cannot in principle be accomplished with a
> proprietary license.
> I have concrete experience of this from a number of experiences with
> several large companies. Where innovation is concerned, established
> companies are certainly concerned about the cost of failure, but the
> live in abject terror of the cost of success and the fact that upheaving
> a market can cause market share distribution to rotate.

can you document that abject terror :-) (I think I'll like better
horror movies)


PS  THanks to all for the detailed replies ...
  I'll put it all on the web  (I asked separately 3 lists)

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