That was from 1994, I think, but it was still useful.

The critic replies at the bottom against the argument that software being inexpensive to produce is a key point distinguishing software from traditional types of patentable material.

It’s good to see their arguments with their flaws since these args are used by others.

>> If someone can spend a few weeks and develop a fuel
additive that doubles the fuel efficiency of automobiles, the reward should
reflect the billions that are at stake, and not the few weeks of effort needed
for the inventor (who is either very lucky or very smart).

If sw is cheap to develop, inventions happen quickly from many inventors and happen more if these inventors share. There are many billions more being sacrificed if we give monopolies (whether the monopolies are even given to the “right” person). The opportunity costs of preventing thousands from leveraging “inventions” outweighs by a lot the gains from having that invention made public at the time the patent was granted (again, assuming the monopolies were given to the “right” person and we have a real breakthrough here). Chances are that less capable inventors broadly patent some invention idea before the more capable inventors do so or before these other inventors get to the real breakthroughs. Should we even allow one smart person to neutralize 1000 other smart ones? Should we allow 1 genius to neutralize 10 others?

Alternatively, there aren’t even billions at stake (as might be the case in some manufacturing sector) since inventions are cheap and hence happen at lower costs so more readily. Software inventions happen on-demand.

The cost factor (and some related properties of software) is a key ingredient. It puts software inventions on the level of literary (math, law, etc) inventions rather than manufacturing inventions. Copyright already protects software.

Remember, you can’t copy/paste a chunk of that new innovative skyscraper so as to use it in your own product, but you can copy/paste arbitrarily complex chunks of software. Costs, the degree of being able to leverage prior developments, and the large number of inventors in play are all interrelated, are a big deal, and are key to rationalizing why software is not like manufacturing.

BTW, Einstein was a patent examiner. Did he require patent protection to be motivated to develop the theory of relativity? Did he get there by himself? No and no.

Could Einstein have been cut off (discouraged, etc) from making those developments if someone else had patented some of the basic concepts or hunches (maybe someone that had kept correspondence with Einstein) ahead of knowing the full details? Yes (if patents were allowed and ethics level were low and in particular if patents were automatic like copyrights once you describe the invention on paper). Broad patents are always easier to write and always pre-empt the more detailed developments.

Are the people getting patents today making inventions of the significance and gain to society as was the theory of relativity? I don’t think so, yet these people are getting patents left and right so as to monopolize areas of development that could very likely be developed much faster (and in parallel) by many others if the patents were not an obstacle.

There is a very real cost in granting patents that prevent greater faster development or development that would happen regardless. We have to ask, does this person controlling this area (which might cover lots of ground, as patent claims are very general and low in detail, and where many more breakthroughs could be taking place or would need to take place to solve certain problems) from today through the next 20 years give society more than if we leave everyone free for the next 20 years? That is doubtful if the area is an important one.

Because advancement is so dependent on many ideas and experts contributing and coming together, it generally makes no sense to have monopolies if we want to promote growth. Note that many invent to solve a problem (eg, to make money) or for other reasons without needing a patent as a motivator. To justify a patent, we might look towards things like high costs to manufacture or experiment. Yes, I’m returning to that point: costs (and related factors) are key to concluding whether a monopoly grant would (very likely) hinder or else possibly instead promote growth.

Finally, Oracle makes many interesting points like the high immediate costs patents pose to the industry and how software has developed fast and far under the expectation that patents were not legal or were not being enforced or taken out very much.

If Oracle were to write that position paper today (assuming they felt the same way), they could make a stronger case by pointing to the wide spread of the Internet and computing (even lower costs to distribute software; greater opportunity for collaboration; more people able to participate). They could point to the huge world of FOSS: the gains this has to society and how it comes about from a focus on the sharing of ideas as these are expressed. They could point to the growing costs the system places on the industry. They could point to the deterioration of the quality of the granted patents. They could point to how much easier it is to run to the patent office with someone else’s idea because of all the sharing that is going on by people that don’t patent anything.