[Patents] Re. Prior Use

[PILCH Hartmut phm@a2e.de]

> >The more software patents there are, the more expensive good
> >software becomes.
> 
> There is no economic data supporting that much, if any, of the
> rise of software prices can be attributable to software patents.
> If anything, the price of software has been steadily decreasing,
> except for programs with more of a monopolistic nature where the
> developer can charge what the market will bear.

What is happening is that less companies are interested in entering the
market.  If the patent game fully catches on in the software field (as it
has been gradually doing in the US), we will have a similar game setting
as in chemistry, biology and other typical patent fields:

- only a few big companies free to develop products
- smaller ones developping patents, hoping to accumulate enough 
  of them so as to gain freedom for product development.

This idea may be attractive for some areas like pharmaceutics, where 

- research and production are clearly distinct areas
- a lot of expensive research has to be done 
- reverse-engineering of products is easy

so that shifting market competition from production to research by means
of patents makes sense, even if a lot of "bad patents" and bureaucratic
transaction costs cause annoying losses. 

But this game is not at all attractive for software.  Software is
basically a mental work that you conceive in your head and develop a very
intimate relationship with. Software developpers will hate you for forcing
them to spend their time playing a game which in the software context is
just silly.  They want to spend their time creating software works and
they want to posess those software works rather than engage in a battle
which leaves everybody uncertain of what is actually his.

Don't tell me again that some other researchers want that
too.  Maybe.  Then they should form an organisation and join our
campaign.  We can then see what we can do together.  
 
> Second, a bunch of postings have expressed the concerns of
> individuals using software that infringes a patent.  For the most
> part, software patent holders never go after individuals for
> patent infringement because it is economic nonsense to do so.
> I am probably one of the few individuals ever to be so sued.
> So software consumers have nothing to worry about when it comes
> to being sued for patent infringement, software or hardware.

You have been told many times here:  patent holders go after anyone who
lessens their profit margins.  That can very well be individuals.  What
about the Ogg case I reported here yesterday?  What about all the
others (Boutell was mentioned, VirtualDub and some more also)?  What about
the many cases where people just don't dare to enter the field because
they know it's mined.
 
> Large software companies (for example those using GIF) do have
> to worry about being sued or paying licenses, but handle the
> costs as an ordinary expense for doing business, and if the
> cost is greater than what it takes to kill the patent in courts,
> they attack back.

Again your assertions are in clear contradiction with experience.
 
> The key concern, especially for my activities over the years,
> have been the small companies and startups in the middle, who
> don't yet have the big bucks to fully play these patent games
> (and which pretty much describes most of the software companies
> in Europe, like the one Hartmut works for).

The whole free/opensource crowd doesn't have the big bucks.
And they are not only concerned by "crappy patents".
 
> How best to help them out?  If you could get the patent offices
> to get rid of the crappy patents they issue, then such smaller
> entities have less to worry about, and probably won't be
> approach until they start making lots of money, and therefore
> are in a position to play the game.

Opensource projects never are in a position to play the game.
Of course your business model of offering patentbusting services for a
$3000 or the like can be afforded by small entities, but that doesn't mean
it is more than a business model that alleviates a few pains here and
there.
 
> And whatever horror stories you might have for software patents,
> I can find many more for non-software patents, especially with
> biotech and digital circuits.

Then find us people from those fields who will spend some time fighting
the ill together with us.  Not by playing the game of the system but by
pressing to improve the system.
 
> Finally, if the German government is so damned worried about the
> negative economic effects of software patents, why did it just give
> some expensive prize to the German guy who has the MP# MP3 patents?

It is not only one German guy.  There is a whole lot of patents cluttering
the MP3 standard.  But organising more prizes and other non-monopolistic
incentives for software innovation might nonetheless be a good thing to
do.

Nobody contends that you have found a nice role for yourself to play.
You could be in perfect harmony with what other people here are doing.
Except that you seem to need more than just recognition of the usefulness
of your activity.  You need to be reassured that your activity is the only
useful strategy for improving things in the world.  If everybody agreed
with that, you would of course be the number one world saviour.  But isn't
that a bit of overkill?  Couldn't you actually live better with more
modest recognition for what you are doing, and in turn also try to
appreciate without prejudice what other people are doing?

regards

-phm