[Patents] Gregs myth

[Nicolas MONNET nico@monnet.to]

Just a note:

Analogies are often misleading, especially in science. 

And as far as the law is concerned, they are just completely absurd, and
in this case I would simply call it a fraud.

When the law is unclear or yet undefined, reasoning through analogy is
completely stupid; the law should be extrapolated according to the
_spirit_ of the law, asking ourselves "what is the purpose of this
law?" and not "what kind of vaguely similar looking other case can I
find".

On Mon, 18 Sep 2000, Bernard Lang wrote:

|Date: Mon, 18 Sep 2000 13:00:09 +0200
|From: Bernard Lang <Bernard.Lang@inria.fr>
|To: PILCH Hartmut <phm@a2e.de>, patents@aful.org
|Subject: Re: [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
|
|

-- 
Nicolas MONNET, Technical Director, IT-Xchange

<URL:http://www.it-xchange.com>
<URL:mailto:nico@it-xchange.com>
<URL:mailto:nico@monnet.to>