[Linux-aus] Re: Fwd: Software patents

Matthew Palmer mpalmer at hezmatt.org
Fri Dec 23 10:46:02 UTC 2005

On Fri, Dec 23, 2005 at 11:35:56AM +1100, Andrew Donnellan wrote:
> On 12/23/05, Matthew Palmer <mpalmer at hezmatt.org> wrote:
> > Oh, absolutely.  "We might market this later", "the more patents we have,
> > the more 'value' we have", and "they'll be good defensively" would be common
> > reasons, I'd imagine.  None of them are particularly helpful to society,
> > though, and the general concept of patents is that they're a bargain --
> > society grants a limited-time monopoly because it's in the general interest
> > to do so.  So if society isn't getting an overall gain, then the patent
> > system isn't working.
> There are very stupid patents out there (like the baseball game
> patent) that don't have any relation whatsoever to the company's
> business. From what I know about Australia's system, software patents
> are fully legal and they last the full 20 years for the normal patent
> and 8 years for the innovation patent.
> The reason for the patent system was to benefit society by allowing
> people to get a time-limited monopoly.

Not 'by', but rather 'in exchange for'.  The benefit to society is that what
would previously have been kept secret (trade secrets) would instead
immediately become public knowledge (to build on) and eventually public
domain (for all to use freely).  In exchange, the person who is gracious
enough to give their work to the public in the long term, gets short term
benefit by being the only one who can exploit the invention.

The alternative is keep the idea secret, but risk having someone else come
up with the idea independently and then you lose your competitive advantage.

> But when people are patenting things they haven't yet implemented and
> patenting useless things, then the system isn't working.

Patenting useless things is fine -- if an idea is without use, then nobody's
going to want to use the idea and there's no harm done -- consider it a
donation to the patent office (or wherever the revenues from patent
applications go) and the legal profession.

The problem comes when someone patents something and then proceeds to do
nothing with the patent.  Nobody else can make a business in that area,
because they'll then get stung with patent lawsuits, but the patent holder
isn't doing anything with it either.  Society loses, then, because no
benefit can flow to society from the publication of that idea (except the
build-on benefit, but I can't think of too many build-on benefits coming out
of any software patents out there -- possibly because the patents being
granted are over-broad).

There's another issue involved with software patents, too -- something that
comes from "Reckless Kelly".  Remember, he heads down to the patent office
with some idea or another, and the bloke behind the counter says "we don't
patent ideas, only actual inventions"?  I have to say that software, even in
it's most concrete form (source or object code) is perilously close to an
idea.  Really, it's just a specific notation (like mathematics) for
expressing an idea.

Of course, since some tosser in the US has patented a particular plot device
for a novel (I shit you not), obviously the patent clerk in "Reckless Kelly"
was lying.  <grin>

> > > > > > For example, we would generally say source code itself is not patentable (it
> > > > > > properly belongs under copyright) because there is no demonstration of
> > > > > > economic utility in source code itself.
> > > >
> > > > Uhm... WTF?  I'd say that the economic utility of a concrete expression of
> > > > an idea (source code) is far greater than an abstract expression of that
> > > > same idea (a patent).
> > >
> > > Yes, except that source code is kept secret (proprietary source, that
> > > is), where as patents require full disclosure.
> >
> > If the source code has no economic utility, then there would be no reason to
> > keep it secret...
> Yes it has economic utility, but it's still not patentable.

That does not follow from what the Senior Patent Examiner said in his
original e-mail (quoted at the top of the block).  To remove the
parenthetical statement, for clarity (emphasis mine):

[...] we would generally say source code itself is not patentable [...]
because *there* *is* *no* *demonstration* *of* *economic* *utility* *in*
*source* *code* *itself*.

I don't see how you can get from that to "source code has economic utility". 
Didn't the patent guy say "there is no [...] economic utility in source

- Matt

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