Hi Arnoud,
On Sun, 2002-12-15 at 14:40, Arnoud Galactus Engelfriet wrote:
Alex Hudson wrote:
[This is beside all the other arguments: I believe the economic one to be particularly strong - software patents should not be given simply because they are not needed.]
Let me just say that you make an interesting point, and I agree with you that this makes it very difficult to defend 'software patents'. However, are you sure you're making an economic argument?
Sorry, I should have been more clear about my addendum: the main point of my email was the problem using "technical effect" when referring to software. It is a very complicated argument, and, I think, requires someone to know a lot about software and what it is before they understand it fully. For me, the "patents are not needed economically" argument is simpler to understand, and therefore stronger - it wasn't an adjunct to my main argument :) The simple question is, "what benefits do software patents give us?" - I believe it is extremely difficult to argue successfully that there are *any* tangible benefits that would be measurable (indeed, quite the reverse).
For me, the economic argument is simply "software can be used to imitate hardware, so if software is unpatentable I can get around patents by simply using software instead". This is unfair to patent holders and hence software that imitates hardware should be protected by the patent.
This does not mean *all* software is patentable. Just the software that is used to imitate the behavior of a specific hardware design. And I guess that's what I'm trying to say with the technical effect argument: if the software achieves the same effect as the hardware would, it should be just as patentable.
I don't believe it is unfair. The person who has implemented something physically (like the speaker cabinet) has something qualitively different to someone with a piece of software. In fact, implementing something like that as a piece of software is unnecessary - you're developing complicated signal processing technology to replicate the effect of 2EUR worth of rotary mechanism :)
I also don't think that re-implementation of something is necessarily something that should be covered by a patent. Software gives us entirely new ways of doing things, and it would not be the ground-breaking industry it is unless it was obsoleting things. In fact, it's precisely because it makes previously difficult things so easy that it's interesting.
It's interesting that you have to fall back to the argument that software doing the same (or better) job than hardware should be prevented, since it's "unfair". To me, that's progress - when someone finds a new, more efficient, way of doing the same job that's how progress is made.
The difference between software and physical devices also cuts both ways. If I "invented" a type of echo chamber that was implemented completely in software, I don't believe I should be able to patent it. Let's assume that it was so clever that no-one - myself included - knew how to build one physically, perhaps because I modelled some seemingly magical material with fantastic properties.
But, if someone *did* eventually manage to recreate my device physically, they should still be allowed to patent it - the fact you can do something in software easily does not detract from the achievement of doing something difficult physically. If we had your system, though, where the achievements of software and hardware are directly comparable, someone coming up with a radical new device would be prevented from gaining patent protection for it, because I had already done it (easily) in software. That, to me, doesn't seem fair - indeed, there would be no incentive for a materials researcher to investigate my system to see if they could make it physically.
The "technical effect" of doing something in software, as opposed to creating a physical device to do something, is not easily comparable. Patents should not be used to prevent progress, they should not be used as an economic crutch so that ailing industries and outdated practices can be propped up for a little longer. Similarly, the amazingly fast progress in the field of software (which currently outstrips all other industries, AFAIK) should not be allowed to prevent what invention currently takes place in fields of technology now.
I would be interested to know what arguments you would put forward to say that software is directly comparable to, say, electronics - other than the fact that we colloqually refer to them as "technology", I don't think that the results and inventions in electronics - new types of transistor, etc. - have any relevance to software, and vice versa.
Cheers,
Alex.