[Patents] why the problem arises in the software field

[PILCH Hartmut phm@a2e.de]

> >The problem is real and the software "industry" is not young. 
 
> When I said the software industry is young, I was referring to the
> fact that it was barely in its infancy when the EPC and most national
> patent laws were written.  The EPC was completed in 1973 - 8 years (?)
> before the first PC.  What did software look like in 1973?  Who was
> using computer programs then, and for what purpose?

Lisp, C, Pascal, Unix, TeX and many other advanced systems and concepts
already existed and most of the substantial achievements in the field had
already been done.  Usually in the form of opensource software, although
it was not called that at the time.

What really changed in the 80s was a drive of proprietarisation, a "pro
patent" movement and a withdrawal of states and commercialisation of much
of what previously been seen as fields of community effort.  Some people
in Germany talked about an "end of the consensus for the necessity of
funding science and culture".  Some systems which had previously been
public were proprietarised and sources closed.  A few software companies
grew to huge proportions, and a Microsoft hype arose everywhere, with
politicians taking Bill Gates as the herald of a new age, in which wealth
would center around software and appropriability of it was therefore taken
to be a key issue.  Yet proprietariness of software has become to be
recognised to be a danger, as the Microsoft monopoly and the rise of a
non-proprietarist alternative culture show.  Moreover, the Microsoft case
shows that copyright provides ample means for appropriation of returns
from software development.

Some patent lawyers argue that appropriability of concepts would have
prevented Microsoft from imitating others and thereby prevented the
monopoly situation, but that is just naive economic thinking by people who
transfer the economics of physical objects to the economics of software.
A sw patent system might have cemented an IBM monopoly, had it been
functioning at today's level in the eighties already.  Yet, at that time,
Bill Gates was really a harbinger of progress.  The problem of Bill Gates
is only that when his role turned into that of an obstacle to progress
most politicians didn't know and were stuck in their proprietarist
ideology. 

-phm