Free?

[Kagamin]

Steven Schveighoffer Wrote:

> patents exist to give an *incentive* to give away trade secrets that would  
> otherwise die with the inventor.  The idea is, if you patent something,  
> you enjoy a period of monopoly, where you can profit from the fruits of  
> your invention.

I think, this can work for software the same way.

> Add that to the fact that software  
> patents are *rarely* beneficial to the community.

Does the community want benefits at the expense of the inventor?

> They are mostly used as
> weapons to stifle innovation from others.  In essence, software patents  
> have had an *opposite* effect on the industry compared to something like  
> building cars.

Let's look at the H264 technology. Would it exist in the first place if its creators had no chance to patent it? Everyone benefit from H264. They charge corporations for patent application, corporations sell quality tools - everyone benefit. MPEG LA (patent holder) said end users won't be charged for viewing H264 video and they allow patent application without fees by free GPL-licensed x264 encoder and free LGPL-licensed libavcodec decoder - opensource benefits, end users benefit. I have a vague impression GPL was a requirement: MPEG LA would not allow patent application by boost-licensed code: that would mean total loss of income. No one would benefit from boost license in this case. GPL *wins* everything here with regards to benefit for open source, benefit for users and benefit for professional commercial users.

> >> 3. It is a very slippery slope to go down.  Software is a purely
> >> *abstract* thing, it's not a machine.
> >
> > Software is a machine: concrete thing doing concrete job. Patent doesn't  
> > protect the machine itself, it protects concrete design work put into  
> > it. Design is a high-profile work, a good design has a good chance to be  
> > more expensive than the actual implementation. So it's perfectly valid  
> > to claim ownership for a design work and charge fees for it.
> 
> And why wouldn't you be able to do this without patents?  Again, copyright  
> already covers software.  Plenty of software companies have large amounts  
> of IP and are successful without having any software patents.

I'm afraid, it's useless to copyright a design: implementation is not a copy so you can't charge for it.

> >> It can be produced en mass with near-zero cost.
> >
> > Dead software is seen as unusable. So - no, to produce software you need  
> > continuous maintenance and development which is as expensive as any  
> > other labor.
> 
> What I mean is, with a traditional machine, there is a cost to recreating  
> the machine.  Such manufacturing requires up-front investment that can  
> possibly outweigh the cost of implementing the design.  Patents protect  
> the entity putting their product out there from having a larger company  
> who can throw money around beat you using your idea.

The same is for software world. A program may require quite a large investment before it could be made usable. Let's consider D: who would get quality implementation first - Digital Mars or Microsoft? If DM doesn't patent D, it will sell *nothing*. Even if DM manages to get some market share, it won't survive competition and eventually lose. IE lost its market share because there was more effort put into Firefox than IE.

> Maintenance costs are not part of distribution, they are part of  
> development.  Of course maintenance is required, but maintenance does not  
> hinder you from making a profit like manufacturing ramp-up does.

Needs for investments may be slightly different, but effectively there's no difference: software project needs continuous investment of resources or it dies.

> However, working software can be written by one guy in his apartment in a  
> couple weeks.  He's not going to do patent searches when it costs him just  
> 2 weeks time to create the software.  Here, the patent system is just  
> getting in the way of innovation.  It's having the opposite effect by  
> instilling fear in anyone writing software that some patent-holding  
> company is going to squash him out of business.

I suppose trivial patents are also a problem for physical industry as the wheel patent shows.

> When was the last time you did anything with a patented software  
> technology except *avoid it like the plague*?

I would like to avoid H264 but unfortunately I can't.

> >> 5. The patent office does *NOT UNDERSTAND* software, so they are more  
> >> apt
> >> to grant trivial patents (e.g. one-click).
> >
> > http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html
> 
> I don't get your argument there, that Australia has a lousy patent  
> system?  That Australian "innovation patents" are indefensible? How is  
> this relevant?

They understand software as good as physical technologies.