From phm@a2e.de  Fri May  4 08:32:00 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Fri, 4 May 2001 09:32:00 +0200 (CEST)
Subject: [Patents] Burce Perens: Software Patents vs. Free Software
In-Reply-To: <Pine.SOL.4.30.0105040526180.13226-100000@faun.nada.kth.se>
Message-ID: <Pine.LNX.4.33.0105040916550.1834-100000@mulix.oas.a2e.de>

Roland said to Greg:

> OK, it seems clear that you are against patents over all, but I still
> think patents are OK for physical processes.
...
> Remember also that the patent theory is not the "thruth" that you can
> stick to. It's a theory setup to serve the original idea of a patent
> as good as possible. You have to understand that software did not
> exist when this theory was written and don't try one more time saying
> that software is just another technology, it's not! Software is a new
> phenomenon, completely different from physics.

There is an elaborate patent theory that excludes software, see the
discussions referred to by

	http://swpat.ffii.org/stidi/korcu/indexen.html

Moreover, "software" may be considered an old phenomenon, if you abstract
from some of the features that we associate with it.

E.g. you could say that the instructions for using a machine are
"software" while the machine is "hardware".  People even figuratively
compare human thinking to "software" and the human body to "hardware".
Or you could say that a certain piano on which Gustav Mahler played in
1905 is hardware, while the information stored in a certain device, which
makes the piano playback exactly the way Mahler played then, is software.

The "Software" vs "Hardware" distinction is another way to refer to a
categorial distinction that existed earlier but was not so clearly
recognized by so many people.

Nevertheless, even in those old days, patent doctrine scholars were not as
philosophically unsophisticated as Greg pretends to be now.

> Patents have been working well for physical processes, but they don't
> work well for software, which has a completely different structure,
> being based upon abstract, non physical, ideal processes.

They may not have been working very well.  Many economicsts have always
very critical about the patent system,

	http://swpat.ffii.org/vreji/minra/siskuen.html

Machlup even states that the patent system has been a "victory of lawyers
against economists".

But at least the resentment of the economists was not unbroken, and the
harms and benefits have been at times somewhere close to being balanced.

They are no longer anywhere near balance once you allow patents on ideas
whose embodiments are immaterial.

> Therefore, can you give a motive why you want to abolish all patents
> already now?

> Your view seems to be that software first should be excluded as being
> special, then we should discuss removing the patent system completely.
> For me such a process seems unneccessary harmful. It is like stopping
> a saucepan to boil by welding a lid on. As you understand the content
> will explode after a while and cause more harm and chaos than if
> you had simply identified the problem and turned the heat down.

Even Machlup gave that advice, for the same reason.

> Patents on software is harmful and is an obstacle for technical
> development and slows down the technical development over all.
>
> I don't know what you are working with, I first assumed that you
> were a patent attorney as you discussed patent theory above.
> In that case your obsessive defense of software patents is not
> professional, because if you were professional, then you would act
> for what is decided by political decisions to be the best for the
> public good.  Even though you can always have your own personal
> view of course, but whatever your own opinion is you have to
> act according to the law, that's your duty as an employer in a
> public service.
>
> Patents should serve both the society and the companies which
> are protected by the patents. Concerning software patents they
> do harm and cause unnecessary costs for both these partners.
>
> The only people that can really benefit on software patents
> are patent lawyers, are you a patent lawyer Mr Aharonian?

Mr Aharonian is a software patent buster.   His business depends on the
existence of software patents.

-phm



