Path: sirius.ucs.adelaide.edu.au!yoyo.aarnet.edu.au!munnari.oz.au!spool.mu.edu!caen!zaphod.mps.ohio-state.edu!mips!troi!spock!allan From: allan@dbaccess.com (C. Allan Rofer) Newsgroups: misc.legal.computing Subject: ACM Article Decrying Patents for Software (Summary) Keywords: patents Message-ID: <317@spock.dbaccess.com> Date: 24 Jan 92 01:03:35 GMT Organization: Cross Access Corp., Santa Clara, CA Lines: 103 Here is a summary of the arguments received so far regarding the ACM article decrying patents on software: (I apologize if I am somewhat abbreviated in exposing some of the arguments; it is not meant to be disrespectful of the content of some of the very long responses) Pro ---- Software patents provide motivation to creators of software. Software copyrights do not go far enough, since the "idea" or "algorithm" cannot itself be copyrighted. Patents allow algorithms to be protected. Software trade secrets do not promote dissemination of valuable algorithms. Software copyrights are for 50 years: too long. Software patents provide motivation to investors in software companies, since their investment can be returned through licensing arrangements for the patents so produced. Software patents provide a livelihood for several sectors: lawyers, clearing- house agents, patent agents, consultants, and litigation-only companies. Software patents permit algorithm designers to "reach for the stars". Although there are currently "difficulties" and "bumps in the road" for software patent practice, these will be ironed out with more experience and maturity of the process. Software patent holders will license their patents "reasonably", even to their competitors. Patents work well in other industries, like the mechanical components industry or the drug industry. Copyrights work well in the music and book publishing industry. (This was considered to be an argument in favor of software patents, but it is not clear why.) Cross-licensing of patents by corporations will occur. Disallowing software patents might disallow all "process" patents. Advocacy of the abolishment of software patents is extremism. Reinvention in software does not occur often. Patent holders can exercise "social control" over their inventions. Con ==== Software patents define a legal monopoly which is morally unsound in a free market. Software patents apply to "ideas" and "algorithms" which cannot be detected through external means in a product. Software patents being issued are actually "prior art", perhaps unpublished, but common in the industry. It is unfair for one person/company to hold a patent on something that was independently reinvented by someone else who did not choose to patent it. Reinvention occurs often in software. Software patents will make it impossible for the small developer to create software due to the high overhead of lawsuits, licenses, and patent search overheads. Software patent law is being made by the courts, not democratically. Software patents provide a livelihood for several unproductive sectors: lawyers, clearinghouse agents, patent agents, consultants, and litigation-only companies. A lurking patent may come out of the woodwork of the Patent Office archives to bite any software developer or user. Pending patents applied for are not published. Nuisance suits will be started by patent holders and agents against creative sectors of the economy. The cost will be enormous. Cross-licensing of patents by corporations will occur. This will block out the independent developer by increasing his/her costs over the large companies. Patent officers are incompetent to handle software patents. They do not know what is prior art nor what is obvious in software. The legal system is incompetent to judge software patents. Copyrights permit "good faith" or "certification of origination" programming to be legally distributed without licenses. Software patents do not. Software patents cause developers to focus on patents, not products. -- C. Allan Rofer INTERNET: allan@dbaccess.com c/o CROSS ACCESS CORPORATION UUCP: {uunet,mips}!troi!allan 2900 Gordon Avenue, Suite 100 FAX: (408) 735-0328 Santa Clara, CA 95051 TEL: (408) 735-7545