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

[phm@a2e.de (PILCH Hartmut)]

> Nice spreading a lie, which seems to be the practice on this list, but
> when you say "Therefore, can you give a motive why you want to abolish
> all patents already no"

It is you who is regularly giving the impression of being against all
patents.  I still have the impression that you must be against all
patents, because you have repeatedly acknowledged that (1) most software
patents are harmful and unjustified (2) so are many hardware patents (3)
hardware and software are undistinguishable (4) non-obviousness is not a
criterion that can sort out most of what specialists would consider
trivial patents.  The only possible conclusion from this is that the whole
system must be cut down or scrapped.  One way of cutting it down is to
disallow patents on ideas whose preferable embodiment is immaterial. As
has been done especially in Europe.

> you are making a lie of what I am saying.  It is you and the others on
> the list who are against all patents, by first attacking software
> patents, and then because of their equivalence to software patents,
> hardware patents as well.

> I am not against all patents.  I am against the artificial and
> non-scientific distinctions being made between "hardware" and :sof
> "software".  They have no basis in law, no basis in science, but
> are a way to launch a sneak attack against all patents.

Again you are arguing in bad faith, ignoring the distinctions in law,
epistemology and economics that have been brought forward >20 times.

Unable to find any argument for your concept of unlimited patentability,
you are launching a sneak attack on all attempts to limit patentability,
trying to force the advocates of this moderate position into a radical
position like the one you yourself are occupying.

> Indeed, Hartmut has argued that hardware patents that are little more
> than 1-1 implementations of software/algorithms should not be patentable.
> I suspect he could then use hardware/software co-design tools to extend
> his arguments to be against all hardware patents.

These arguments can be extended even further, but do not have to.
You can use them to eliminate about 3% of the EPO's current patents
(software patents in the narrow sense, including 1:1 hardware
implemenations) or even a larger scope (including patents on hardware
processes that imply no discovery of unexepected physical causalities,
i.e. many of the mechanical and electronics patents).  In any case
there is a hard core of largely chemical, biochemical, pharmaceutical
etc patents that remain untouched.

Moreover, as you have been told >20 times, there is no absolute necessity
of being so consistent as to ban 1:1 hardware implementations from
patentability.  The patent system is not there to serve some theoretical
goald of consistency but to serve economic policy.

> "hardware" and "software" are the "technology" of the "science" of
> "mathematics".  Thus allow the patentability of both, or the
> patentability of neither, but don't come up with these artificial
> distinctions between the two.  And hardware is no more physical
> than software, and no more functional, which makes neither eligible
> for copyright protection.

I cannot dispute your courage in taking radical positions.
In other word you say

- Computer programs should not be copyrightable
- Anyone should be allowed to copy, sell and reuse program code that is
  not patented
- If there is any individual creativity in your program which you want
  to prevent others from ripping off, you must find a way to patent it
- The number of software patents must significantly increase and the
  already non-existent barriers to triviality must be officially scrapped,
  so that even the smalles trifel of ingenuity or individuality can be
  accounted for by patents.

This is indeed a very original position, but I would hesitate to say that
it is based on any sound "patent theory" or "science".

-phm