Not to fan the flames of an already hot topic... On the latest show our favorite legal entity came up once again, and it was mentioned (I forget by who) that the justification for having software patents is that there needs to be some way to motivate companies to spend money on innovation, followed by a somewhat heated discussion on whether or not patents really are necessary to achieve that or if a large company can make money simply by being first. I'm sorry, but that should not be the purpose of patents (software or otherwise). Of course a large company can make a lot of money by just being the first to implement something. But what about a lone guy working out of his mother's basement? What happens if he comes up with a great idea worth millions? He might not have the resources needed to implement it on his own, so in order to realize anything from his innovation (if he did, he wouldn't be living in his mother's basement, would he?). He needs to be able to shop around his idea to either find someone willing to help him implement it, or he needs to outright sell it to a company willing to make the investment in whole. But in order to do that, he needs some way to protect himself from whomever he pitches the idea to from taking it an implementing it on their own without giving him a cent. He needs some sort of legal ownership of that idea in order share it with third parties who could help him realize it. Now the question of whether or not today's patent system is effective at reaching that goal is perfectly valid question, and I think it is clear that it is not. For one thing, it will typically take two years for the patent to get issues, so by the time the USPTO is finished with their rubber stamp it is already out of date. I actually think the fact that so many obvious patents get through is less of a problem that this, after all if the patent turns out to be crap that will come out when the owner tries to enforce it. But my larger point is when you throw around ideas of how to improve the patent system, don't just think about the implications to the IBMs, Apples, and Googles of the world. Also think of the implications for the guys programming in their mother's basement.
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