efficiency of patents vs copyright

[Hartmut Pilch <phm@a2e.de>]

> >.... and says that patents are "more and more" viewed as the "protection
> >.... of choice for software".
> >
> >.. Is this the academic standard in law schools in the US ?
> 
> Yes, in those law schools that realize that software is essentilly
> something that is useful, functional, comprising processes and methods.
> And last time most law schools looked, "useful", "functional", 
> "processes", "methods" are all denied copyright protection in most 
> of the world.  But not patent protection.  You may not like the law,
> but at least know what it is.

You switched the subject, but anyway: if you ask bad questions you get 
bad answers.

The question "what does this exclusion right protect" is a bad question.

A better question would be: what activity does the exclusion right
effectively make more costly and by how much?  And how does this cost
compare to the cost of obtaining the right ?

Now, when you have a typical software project of 10 man years with
accessible source code and a fair amount of innovation, you will have the
following scores

                cost of obtaining rights        cost of imitation       
                
patents         1,000,000 USD                   2 man years

copyright       0 USD                           5 man years

Here I am assuming that you can perhaps obtain 20 patents which cover
only some aspects of the work and can be circumvented with a certain 
effort.  Assuming that this is the "protection of choice" and there is
no copyright, you just need to take the source code and replace some
of the patented algorithms.

Closedness of source code shifts the calculation somewhat, making 
imitation more costly in both cases, but usually the argument for patents 
is that patents make disclosure viable, so I omit this complication for
the time being.

I think it's quite clear in both cases that patents are not "the
protection of choice".

And this model still omits the overall effect of patents, i.e. the fact 
that they make everybody's development more costly because you have to 
work in a minefield.

I think the calculus of the above kind is the only reasonable way to 
compare the efficiency of exclusion rights.  It is simply ridiculous to 
assume that an exclusion right has an object ("function", "expression", 
"idea"), and Greg's writings actually demonstrate this ridiculousness 
quite well.  So why does this kind of question keep being asked in law 
schools and everywhere else?

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
300,000 votes 2000 firms against software patents    http://noepatents.org/