On Wed, 26 Oct 2011 15:28:21 -0400, Kagamin <s...@here.lot> wrote:
Steven Schveighoffer Wrote:
patents exist to give an *incentive* to give away trade secrets that
would
otherwise die with the inventor. The idea is, if you patent something,
you enjoy a period of monopoly, where you can profit from the fruits of
your invention.
I think, this can work for software the same way.
You can profit from the fruits of your invention *without* patents. You
can with machines as well, but software has the added bonus that copyright
protects your IP.
But it's much harder to reverse engineer how someone built a machine than
it is to reverse engineer how software is built. The secrets can truly
die with the inventor, as opposed to software -- regardless of the final
binary format, it's always possible to get back to source code. And
thanks to copyright law, that source code is a derivative work, you can't
use it unless you license it from the originator.
Add that to the fact that software
patents are *rarely* beneficial to the community.
Does the community want benefits at the expense of the inventor?
The *point* of patents is to benefit the community. The price society
pays to the inventor is granting a monopoly. I'd argue that a 17-year
monopoly on software technology and algorithms is too high a price to pay
for knowing a "secret" you can't use until it's very obsolete. 17 years
ago was 1994, Windows 3.1 was all the rage. Do you really think society
is now going to benefit from using the patented technologies from then?
When the LZW patent expired, it was a mere amusing footnote, as we had all
moved on to better compression technologies long before then.
They are mostly used as
weapons to stifle innovation from others. In essence, software patents
have had an *opposite* effect on the industry compared to something like
building cars.
Let's look at the H264 technology. Would it exist in the first place if
its creators had no chance to patent it?
What if is not a fair game. It's impossible for me to say because I did
not invent it. But I believe most people who come up with ideas for
software are not in it for the patents. Even in the company I worked for
which got several software patents, they were an afterthought -- Software
is invented to *solve a problem* which needs to be solved whether it can
be patented or not. Did the inventors of H.264 do it for the patents?
Maybe. But I firmly believe if software wasn't patentable, we would have
equivalent video streams today (maybe even better than what we have),
because it *solves a problem*.
Everyone benefit from H264. They charge corporations for patent
application, corporations sell quality tools - everyone benefit. MPEG LA
(patent holder) said end users won't be charged for viewing H264 video
and they allow patent application without fees by free GPL-licensed x264
encoder and free LGPL-licensed libavcodec decoder - opensource benefits,
end users benefit. I have a vague impression GPL was a requirement: MPEG
LA would not allow patent application by boost-licensed code: that would
mean total loss of income. No one would benefit from boost license in
this case. GPL *wins* everything here with regards to benefit for open
source, benefit for users and benefit for professional commercial users.
This is a strawman -- GPL is not required by patent law to be licensed at
no cost for software patents. The inventors of H.264 have chosen this
route, so good for them. But it is not a benefit of GPL or a strike
against boost, it's just what they chose.
>> 3. It is a very slippery slope to go down. Software is a purely
>> *abstract* thing, it's not a machine.
>
> Software is a machine: concrete thing doing concrete job. Patent
doesn't
> protect the machine itself, it protects concrete design work put into
> it. Design is a high-profile work, a good design has a good chance to
be
> more expensive than the actual implementation. So it's perfectly valid
> to claim ownership for a design work and charge fees for it.
And why wouldn't you be able to do this without patents? Again,
copyright
already covers software. Plenty of software companies have large
amounts
of IP and are successful without having any software patents.
I'm afraid, it's useless to copyright a design: implementation is not a
copy so you can't charge for it.
You cannot copyright a design. You can copyright implementation. And if
you don't make the design public, people have to spend vast amounts of
time and effort to just *figure out* your design, then they have to write
their own implementation (which is not cheap). Meanwhile, you have
improved your design to something better and already sold thousands or
millions of copies, sucking up all the market share.
Even if you share your design, people still have to create their
implementation, which can take years.
>> It can be produced en mass with near-zero cost.
>
> Dead software is seen as unusable. So - no, to produce software you
need
> continuous maintenance and development which is as expensive as any
> other labor.
What I mean is, with a traditional machine, there is a cost to
recreating
the machine. Such manufacturing requires up-front investment that can
possibly outweigh the cost of implementing the design. Patents protect
the entity putting their product out there from having a larger company
who can throw money around beat you using your idea.
The same is for software world. A program may require quite a large
investment before it could be made usable. Let's consider D: who would
get quality implementation first - Digital Mars or Microsoft? If DM
doesn't patent D, it will sell *nothing*.
I think if Microsoft decided to implement D, Walter would be the first one
jumping for joy :)
Even if DM manages to get some market share, it won't survive
competition and eventually lose. IE lost its market share because there
was more effort put into Firefox than IE.
DMC is still being sold AFAIK. There is always a market for cheaper
software, or a more agile software company.
One might pay for DMD if one gets specific support. For example, if I
wanted to buy a D compiler for ARM, would Microsoft be willing to
implement it for a fee? Would they even respond to my request?
Maintenance costs are not part of distribution, they are part of
development. Of course maintenance is required, but maintenance does
not
hinder you from making a profit like manufacturing ramp-up does.
Needs for investments may be slightly different, but effectively there's
no difference: software project needs continuous investment of resources
or it dies.
But why is that? Shouldn't patents fix that "problem?" Because with a
patent, you have essentially a monopoly. How can anyone compete with your
poorly maintained software?
The real answer is, patents *don't help* with maintenance costs. You
can't lallygag around not innovating on your software because someone else
will find a way to do the same thing without your patents. All software
patents do is create a barrier to innovation, and act as weapons against
other patent-holding firms.
Note, Google agrees with me:
http://articles.timesofindia.indiatimes.com/2011-07-26/internet/29815846_1_nortel-patents-software-patents-patent-suits
However, working software can be written by one guy in his apartment in
a
couple weeks. He's not going to do patent searches when it costs him
just
2 weeks time to create the software. Here, the patent system is just
getting in the way of innovation. It's having the opposite effect by
instilling fear in anyone writing software that some patent-holding
company is going to squash him out of business.
I suppose trivial patents are also a problem for physical industry as
the wheel patent shows.
The wheel patent is a test of a poorly designed patent system (as the
article indicates). It is not representative of most patent systems.
See this quote from your linked article:
===========
Keogh, who is a freelance patent lawyer himself, says that he applied for
the patent in order to test this new class of new patents. He says that
innovation patents are not examined in detail by the Australian patent
office.
"The patent office would be required to issue a patent for everything," he
told The Age newspaper. "All they're doing is putting a rubber stamp on
it."
===========
Note that this is not a trivial granted patent because of a flawed review
process -- THERE IS NO REVIEW PROCESS, ALL PATENTS ARE GRANTED! This is
not a fair comparison of well-established patent systems.
When was the last time you did anything with a patented software
technology except *avoid it like the plague*?
I would like to avoid H264 but unfortunately I can't.
Right, and if software patents did not exist, the web would have
standardized on some other video codec, which would be freely available by
now.
http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html
I don't get your argument there, that Australia has a lousy patent
system? That Australian "innovation patents" are indefensible? How is
this relevant?
They understand software as good as physical technologies.
Again, not a valid comparison.
-STeve
