From phm@a2e.de  Wed Oct 11 22:42:08 2000
Date: Thu, 12 Oct 2000 00:42:08 +0200 (CEST)
From: PILCH Hartmut phm@a2e.de
Subject: [Patents] why the problem arises in the software field

> >The whole thing is about software patents; I'm not aware of any other
> >field where this is that much of a problem.
 
> You might be before too long.  The problem (?) in this area arises
> because the software industry is still relatively young

Not before too long, the Soviet Union will achieve true Communism.  The
problems (?) of socialism arise because we have not yet had enough time to
create the New Man.

--

The problem is real and the software "industry" is not young. But in one
way you are right:  the patent system may press what is currently a
cottage industry into a Procrustes bed, to which, after a certain time, it
may get used.  Just as after the desctruction of an ecosystem by an oil
spill some new form of life will adapt itself to the polluted environment.

For the reasons why the software field is so troubled by patents, the
reports from Bessen and Maskin as well as the report on the "Digital
Dilemma" by the US National Research Council are quite telling.  As are
many other reports.  It is quite unbelievable that after these anybody
would seriously attempt to belittle the problems.  Maybe one simple
thought could help grasp them:

Patents produce transaction costs which are troubling to all industries.
However they are particularly troubling to informational goods.  Look at
what a patent license agreement normally consists of:

1 payment of a lump sum
2 payment of per-piece licenses
3 restrictions on production and distribution
  agreements to monitor and report on infringements by others

Thus for each patent an exclusive oligopoly is formed.
But for informational goods, conditions 2 and 3 are extremely painful and
even hard to apply.  Condition 2 means that the software must be
distributed on a per-piece basis, which is against the nature of
information.  Information does not come in pieces and is not restricted
by place and time.  

In addition to this, here are a few more conflicts
- informational innovation occurs in small steps that build on 
  each other
- informational innovations are often decentrally organised (basaar)  
- information interoperates worldwide 
- the Internet hinges on freedom of information
- the Net treats any restrictions on information as a malfunction
  which it needs to reroute around

> and because (in general) it has been slow to realise that patents are
> available to protect certain inventions in the programming field (eg.
> those that produce, or are capable of producing, a technical effect).

The latter is a confusing (and I'd even say deceptive) concept.  Software
companies wouldn't have to be concerned about patents on technical
inventions, even if they can be controlled by programs.  Whether the
patent is violated or not would be only of interest to the industrial
enterprise that asks them to write a program.

> Consequently programmers have traditionally not been concerned about
> whether their programs infringe a patent.  

And should, according to European law, never have to be concerned about
that, see above.

> We may see a similar reaction from other sectors if some of the
> currently excluded fields (eg business methods) are brought into the
> patent system.

You may see a transformation of human action of other fields in a similar
way, with people being pressed into Procrustes beds, productivity
dropping.

This whole patent movement is imho the sickest emanation of the cultural
revolution of this century.  All values that previously organised society
were destroyed and only money became the organising tool.  Some people
became so obsessed with accounting and property assets that they feel
unhappy if there are some things left in this world which are not
merchandisable.  It appears to them that the only organising principle in
life which they have found to be reliable must be extended everywhere, and
even when reality provides so strong evidence of the absurdness of this
endeavor, they still persist in their ideology.  Like real existing
socialism, real existing proprietarism is an ideology that accepts no
evidence.

-phm





