Re: [Patents] "Betrayal of physics"

[Hartmut Pilch <phm@a2e.de>]

> Another line of reasoning is that software SMEs need to know they own
> what they write, and large corporations need not EOLAS and Acacia law
> suits. Copyright instantly fulfills those needs. Software patents can
> not by definition.
> 
> With copyright, the legal object is the code, and infringement questions
> are solved based on interpretation of that object.
> 
> The infringement interpretation work is done
> 
>     1. when products are already in the marketplace
>     2. only when called upon
> 
> With patents
> 
>     1. ownership is not instant and not guaranteed
>     2. abstraction work must be done before the product is in the
>        marketplace (not only when called upon)
>     3. the legal object is the abstraction and the infringement
>        interpretation work is based on that object (not the code)
> 
> With software patents, if you put disadvantages of the uncertainty of 1.
> and the administrative cost of 2. aside, 3. is the most worrisome 
> because the abstraction is necessarily broader than the code and the 
> interpreation of the abstraction extends the scope of the exclusion furher.
 
This is indeed an insightful and innovative way of explaining the
problems.

Codified exclusion rights arise in an area where the object is far removed
from human writing and there is consequently room for an extra layer of
codification.  This distance creates a space for a hazardous monopoly
assignment game, which, although inevitably unjust and lottery-like, is 
tolerated by society precisely because it is so far removed from human 
writing.