[Patents] Burce Perens: Software Patents vs. Free Software

[phm@a2e.de (PILCH Hartmut)]

> >Now we may regard the price/unit where we still get your investment
> >back for selling services based upon .... [ developing hardware and
> >software]
>
> Irrelevant.  Patent laws have never concerned themselves with relative
> returns on investment.

Itis irrelevant to this point what patent laws have concerned themselves
with.

Patent laws have traditionally drawn borders between patentable and
the non patentable subject matters.  And theses borders have been drawn
based on philosophy which is independent of patent laws.  Such as
the distinction between material and immaterial embodiments.
Software is an immaterial embodiment.  So are business methods.
Patents shouldn't be granted on ideas whose embodiments are immaterial.
Even some of the European patent scholars at the recent AIPPI meeting
repeated that, although they have greatly blurred the former doctrine.

> Patents are meant to encourage (for whatever incentive) new and
> non-obvious technology.   PERIOD.

Wrong.
I can quote a famous Federal Court doctrine from 1976

        http://swpat.ffii.org/vreji/papri/bgh-dispo76/

that says just the opposite, approximately the following (translated from
German):  "it is impermissible to use the patent system as a kind of
collecting sink into which any kind of idea will fall that cannot be
appropriated under other systems, because that would exert an imprevisible
and dangerous influence on the freedom and economic development of
society."

This is often quoted even today, after this spirit has been grossly
violated, and even by those who have violated it.

And when you say "meant to encourage", then evidently there can be fields
of what you define as "technology" in which innovation is not encouraged
but stifled by granting patents on all "new and non-obvious" innovations.
So with the above sentence you may end up contradicting yourself.

> Software is a technology.   PERIOD.   All software applications achieve
> a technical effect (if anyone in Europe bothered to define a
> scientifically rigorous definition of "technical effect".)

Music is a technology.  PERIOD.  All pieces of music played on an organ
achieve a technical effect, i.e. provoke a movement of the organ reeds
that can be measured in terms of energy, frequency, friction etc.  We have
all agreed that the current EPO term "technical effect" is ill-defined.
This does not change the fact that software innovations, like new ways of
writing pieces of organ music, "contribute no new teaching to the art
of using natural forces to directly cause a a useful effect" (classical
formula of German and partially EPO jurisprudence, which has been
enriched with further even more rigorous definitions, as you well know).

> Thus software is as patentable as any other technology, including
> hardware.  The production costs are irrelevant, and have never been
> a factor in the statutory considerations for patenting.

Of course the production costs cannot be considered by patent examiners,
because that would only add to legal insecurity, given that bureaucracies
have to either operate on simple principles or not operate.

This however does not mean that the simple principles themselves, which we
as citizens have a right to decide about, may not be based on economic
considerations.  And in fact they are and have always been, as you well
know.

> Additionally, software is completely functional, and therefore (at
> least in the US) should not be, and should never have been,
> protectable by copyright.

Functional texts such as operation manuals are also creative and
protectable by copyright.  Anything text qualifies for copyright, that is
built on individual human ingenuity and that we don't want people to
simply copy but rather to take as a source of inspiration for their own
creative writing.

> Software is a functional technology.  Just like hardware.  That's the
> science.

That's not science but just the bragging of someone who has no arguments
and wants to scare people away from criticizing.  Just the opposite of
science.

> If you want to eliminate software patents, you will have to eliminate
> hardware patents.  The production costs are irrelevant. Heck, in most
> cases, the R&D costs to develop the hardware or software product are
> just as irrelevant.

Again a reiteration of points that were refuted >20 times.
It is enough that in general there is 10000x less production cost behind a
software patent than behind a pharamaceutical patent.

> In any logical formalism for basic patent theory, it would be easy to
> prove logically that software is just as patentable as hardware.  You
> are welcome to keep on posting non-logical reasons to the contrary.

Again pure bragging of someone who shields his lack of arguments behind
claims to some mysterious "patent theory" and "science", both of which
don't exist or are not related to what you claim.

-phm