[Linux-aus] Re: Software patents: Munich has put Linux project on hold!

Con Zymaris conz at cyber.com.au
Fri Aug 20 10:44:02 UTC 2004

On Fri, Aug 13, 2004 at 02:42:51PM +1000, Anthony Towns wrote:
> >
> > Crooss-examination is a form of understanding.
> Err, no, cross-examination is a form of argument. Not that there's anything
> wrong with that.
> > > > On Thu, Aug 12, 2004 at 06:07:45PM +1000, Anthony Towns wrote:
> > > > > > 1) Should software patents exist? If so, why?
> > > > > I don't know. [...]
> > > > Can you envisage software technology advancing 'just as fast' without 
> > > > patents?
> > > Of course. I can also envisage software technology not advancing anywhere
> > > near as effectively too. It might advance much faster too. If I was sure
> > > which was the case, I wouldn't have said "I don't know".
> > As mentioned, lack of patents has not stopped advancements in
> > architectural design, above and beyond any underlying civil engineering
> > technology. 
> And as mentioned, unless you're arguing that all patents are unnecessary
> (which you might be, but if so you're just wasting your time and mine),
> you need to also demonstrate that software's more like "architecture"
> and less like "engineering".

Something to consider. A patent which is instantiated and used to create a
specific product, for example, the RSA patent, should carry a lot more
'novelty' weight than a patent for a process which can form just a
miniscule portion of an application, which is probably the majority of 
existing software patents.

As an analogy: you may patent a dazzling and novel new mousetrap, which is
fine, but not a screw used in that moustrap, as well as many other places
and has potentially seen use already (prior art.)

The following may be worth a read too:


 Software patents are not automatically evil. It makes little sense to say 
 that if you build something ingenious, non-obvious yet useful from 
 hardware then you can patent it, while exactly the same functionality in 
 software cannot be protected. Companies who use patents to make money 
 aren't evil either -- corporate organisms are amoral money-making 
 machines, and all you can ask of them is that they obey the law.

 The trouble comes from a lack of expertise and foresight in the way 
 software patents are issued. More than 20,000 new software patents are 
 passed every year in the US: this is either an orgy of fecund invention 
 or a cynical push for software development's nuclear winter. The 
 evidence to decide which is at hand. Take a look at the software you use 
 every day. Any evidence of a tsunami of fresh technology? No. Was the 
 software industry pre-patents a sluggish, unprofitable, ineffective 
 mess? Again, no.

My take is that unless the software patent process can be made 'near
perfect', throw the whole lot out. That levels the playing field for 
everyone, not just those who have more powerful legal muscles to flex.

Con Zymaris <conz at cyber.com.au> Level 4, 10 Queen St, Melbourne, Australia 
Cybersource: Australia's Leading Linux and Open Source Solutions Company 
Web: http://www.cyber.com.au/  Phone: 03 9621 2377   Fax: 03 9621 2477

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