On Wed, 28 Jan 2004, Alexander Terekhov wrote: > Robert Osfield wrote: > [...] > > vulnerabilities and risks to our livelihood. > > If you don't intend to eliminate all IP laws
Please stop trying to prove Richard Stallman correct by abusing the term "Intellectual Property" to suggest that you are "either for IP, or against IP". http://www.fsf.org/philosophy/words-to-avoid.html#IntellectualProperty Patents, Copyrights and Trademarks are self contradictory (if you offer more "protection" to one group you are taking that protection *AWAY* from another) and are a balance between competing interests. Sometimes, just sometimes, the public interest is considered in this area of public policy (but unfortunately not as often as it should be). Patents and Copyrights are to inventors and creators like water is to humans: too little and you dehydrate and die, and too much and you drown and die. Only with the right balance can we survive. Hopefully most people will see through attempts to drown us, and instead work with us to try to create the right balance between competing interests that best serves the entire software sector ("software manufacturing" and FLOSS) as well as the public good. > (as an ultimate solution to the problem of vulnerabilities and risks), > then something like www.pubpat.org is the way to go, I think. This is like thinking that the solution to nuclear weapons in the hands of "bad" people is to have more nuclear weapons in the hands of "good" people (recognizing of course that who is "bad" and who is "good" is an extremely subjective and political determination). The problem is that "patent pools" and expensive fights against the extremely high number of poor quality patents in "information processes" only works for organizations with a lot of money (Like IBM) or some sort of benefactors of those monied special interests. Threats and chills on innovation are not reduced by this, and the only real solution is non-proliferation treaties to try to rid us of the problem in the first place. http://www.pubpat.org/ is not a solution to the "information process" patent problem, but I would agree it will help in subject matter areas where patent policy is mostly helpful but poor patents still get in. The first part of recognizing the problem we are trying to discuss here is to recognize that those who are against "information process" patents are not necessarily against patents in other sucject matter. We just believe that the logic and justification behind patent policy fails in some of the recently expanded subject matter areas. Subject-matter independent economic analysis is needed, and this analysis is currently not being done. Those who support patents in other subject matter should be helping us with these subject-matter independent analysis as the integrity of the entire patent system is being questioned because of improper expansion of patent policy into bad subject matter areas. Try this out: Offer the software community the justifications for patents, and we will explain why this doesn't apply to "information processes" like software. Here are just two of the most common ones and one possible response: Justification: the alternative to patents is trade secrets where we never learn about the invention. Patents get inventors to disclose the invention so that it is available to the public after the term of the patent, in exchange for a temporary monopoly. Response: distributed software is already published and not a trade secret. Whether the software is Open Source or not, the right to reverse engineer to create compatible products means that the 'invention' is never secret. In the case of many existing software patents the distributed software (disassembled) still provides more disclosure of the invention than the legalistic wording of the patents do. Non-distributed software embedded in internal processes (such as software that controls a robot to manufacture something) is a very separate situation. In this case if the process is patentable it is patentable regardless of the existence of the software ("software neither adds to nor subtracts from the patentability of an invention"). That does not mean that the software alone taken outside of the context of that manufacturing process should be patentable -- that is what the "per say" talks about, and the concept is quite simple even if obfusticated by those who wish to expand patent policy to information processes. Justification: long expensive up-front R&D needs temporary monopoly to recoup capital costs. Response: I think FLOSS and small-business "software manufacturing" software authors (including shareware and freeware) have always tossed this idea out the door. Network effects and first mover advantage are often far more effective than a patent can be in gaining market share, and these effects apply equally in a "free market" sense to the entire sector and not just the largest players. As we move from capital-intensive speculative supply-side software development to incremental non-speculative demand-side software development the lack of a need for capital for the software creation will be realized. I consider this to be a basic part of the maturing of the software sector, and something where old-economy thinking is slowing down this maturity. There may be some software that doesn't get developed if high-risk R&D doesn't receve the temporary monopoly. I think the number of cases this applies to is small compared to the innovation that is not happening today because of the high-risk of patent infringement lawsuits due to extremely poor quality information process patents. I see no evidence at all that software patents are reducing risk for expensive R&D, and all evidence that patents in this subject matter area are causing the opposite. This is not to say that venture capital will not be needed for non-software aspects of a business, but that it will not be needed for the software development aspects of the business. Note: I read in the book "OPEN INNOVATION" by Henry Chesbrough that IBM has moved away from old-economy thinking for their hardware innovation by opening hardware patents to licensing. In fact Henry dedicated an entire chapter "From Closed to Open Innovation" to IBM's moves here. The equivalent move for software and other information processes would be to lobby for governments to abandon information process patents entirely given the extremely different market dynamic that exists between hardware and software. ..etc...etc.. We could go on and on through the justifications for patents in a given subject matter and all the arguments why they don't apply to software or other information processes. This same analysis suggests that patent policy is still needed in manufacturing (such as IBM's hardware manufacturing innovations), pharmaceuticals and other areas -- but what is good for one subject matter is not necessarily good for another. There is an additional slide presentation referenced from http://www.flora.ca/patent2003/ titled "Interest of software patents for a small software publisher," by G�rald-S�drati-Dinet which is quite worthwhile to browse through. > regards, > alexander. --- Russell McOrmond, Internet Consultant: <http://www.flora.ca/> Governance software that controls ICT, automates government policy, or electronically counts votes, shouldn't be bought any more than politicians should be bought. -- http://www.flora.ca/russell/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
