From Bernard.Lang@inria.fr  Mon Sep 18 11:00:09 2000
Date: Mon, 18 Sep 2000 13:00:09 +0200
From: Bernard Lang Bernard.Lang@inria.fr
Subject: [Patents] Gregs myth

On Sat, Sep 16, 2000 at 10:10:52AM +0200, PILCH Hartmut wrote:
> Greg Aharonian wrote in Patnews:
> 
> >             SOFTWARE SHOULD NOT BE PATENTED
> > 
> > He starts out this section with "The first myth is that software simply
> > should not be patented."  Actually, I agree with him that this should be
> > a myth, that software should be patentable.  Unfortunately, he rambles
> > on talking to software engineers about Linux, copyright, and expression in
> > three paragraphs, when he could of, and should of, been more professional
> > and said that "In light of Turing/Church/Post, hardware/software codesign
> > tools and the Doctrine of Equivalents, if hardware is patentable, then so
> > should be software".  That's all you have to say to a bunch of software
> > engineers to convince them that software should be patentable, that is if
> > you know anything about software engineering and are writing for a
> > professional software engineering journals.
> 
> I don't think a simple "doctrine of equivalents" or any other systematic
> reasoning is enough to justify the application of the patent system.  The
> primary justification for applying the patent system lies in the economic
> results, finding a systematic explanation is only secondary. And below I
> show that it can be done nicely, even given the equivalence of hardware
> and software.
> 
> Besides, I think it is a myth of Greg's own making if he says that the
> "doctrine of equivalence" reasoning is enough to persuade any professional
> software engineer of the need to make software patentable.  Apparently
> lots of people in that group are not persuaded, and a survey from 1998
> sets this figure to 84% (among software developpers in large American
> software companies).

I fully support the "doctrine of equivalence".  According to it, since
it is obviously absurd (to me, at least), and contrary to European
Treaties, to patent software, it is equally absurd and illegal to
patent hardware that performs the same task.  Hence all such patents
should be revoqued.

  More to the point...  many arguments against software patenting do
apply to harware mechanically generated from software with a silicium
compiler.  But possibly not all.  On the other hand the economic of
developping harware products is such that it may justify a form of
protection not justified for software.  The issue is not some
half-baked doctrine, with no economic or constitutional basis
anywhere, but "to promote Progress of Science and useful Arts", and
that may require varying policies.

Bernard

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