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Patents Roundup: Opposition to Software Patents and General 'Ownership' of Software Ideas

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Summary: An assorted collection of new articles about patents with more focus on software patents in Europe, the United States, and China

"Lenz tells a PA Horns why patents are no good for developers," argues the FFII, which points to this new post from a European patent attorney. He says that:

There are myths about patents on computer-implemented inventions a.k.a. software patents which won't ever die.

One of them is the allegation that patents are a tool to steal a software developer / programmer the hard-earned fruits of labor. The software is the developer's / programmer's own work and he or she should be entitled to some sort of ownership.

That is what copyrights are for. Ideas alone cannot ever be "owned" and it is dangerous to pretend that they should be. "Copying Ideas is Not Theft" says this new headline from Doctor Mo, who explains how absurd this notion of "stealing"/"theft" in the context of mere ideas has become:

Then we move onto the other set of people. The “every idea is owned” brigade that think that patents are for “encouraging innovation” and that using ideas or inventing similar ideas in the process of working on problems are somehow theft. Parents aren’t for encouraging innovation, they’re for ensuring inventions are documented in the public domain so progress isn’t locked away behind trade secretes.

It’s also not theft. Stealing is the re-appropriation of a fixed property, the possession moves. Copying ideas (even if you DID copy ideas instead of just inventing the same ones again) can’t be stealing because the idea is still in your head and not just in mine. The copying process means it _can’t_ be theft.

Patents are a social agreement who’s time is past. Society no longer gains anything from them and I have no faith in their original purpose. No inventor or programmer reads patents, they don’t ensure the progress of inventions any more. Sure software patents shouldn’t have ever existed, but more than that patents in all other areas have caused major problems and just silly regressions in progress and standardisation.

PolR from Groklaw has just published another relevant post which is titled "Why Software is Abstract". From the introduction:

Following the ruling of the Supreme Court in Bilski, the USPTO asked, in substance, how to tell an abstract idea from an application of the idea. In this article I propose an answer to the question of what makes software abstract. It is a follow up to the previous article, Physical Aspects of Mathematics.

The logic is to look at why a mathematical calculation is abstract and then see if the same logic applies to software. It happens that it does. It is possible to show that software is abstract with references to the underlying mathematical aspects. This is not, however, the topic for this article. The argument is presented without any assumption as to whether or not software is mathematics. I work from the observation that a mathematical calculation solving a mathematical problem is abstract. Then I look at what makes it abstract. Then I observe that the exact same logic is applicable to all software whether or not the law sees it as an algorithm as defined by Benson. This is not surprising. Software is mathematics and this makes it abstract, but I don't use or rely on this fact in making the arguments in this article.

Fortunately, software patents are not much of a problem in Europe, at least not yet. The president of the FFII has just explained that "The central EU patent court [...] has great chances to create caselaw in favour of software patents" and he also notes that:

The company that applied for the most patents in 2008 was China's Huawei, probably a lot of software patents

Here is the new reference article from Slashdot:

eldavojohn writes "A lot of Westerners view China as little more than the world's factory manufacturing anything with little regard to patents, copyrights and trademarks. But it seems as far as patents go, China is moving on up. According to the WIPO, the company that applied for the most patents in 2008 was not an American or Japanese company but China's Huawei Technologies. And China has made astonishing ground recently moving up to third place with 203,257 patent applications behind Japan (500,000) and the United States (390,000). It remains to be seen if these patents applications will come to fruition for China but it is evident that they are focusing on a new image as a leader in research and development. The Korean article concentrates on 2008 but you can find 2009 statistics at the WIPO's report on China along with some statistics breaking down applications by industry."

Techrights was created just under 4 years ago (the anniversary is approaching) because of software patents, namely the Microsoft-Novell deal of November 2006 (it led to the "Boycott Novell" initiative). Ever since then, software patents have become a greater threat to software freedom for reasons we'll cover in the next post.

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