09.02.09
Patents Roundup: Software Patents Seen as Harmful to Innovation, Tuxera Discussion Continues
Lit when software patents are annulled.
Summary: Miscellaneous news and views about software patents
SOME interesting new articles have appeared which can be used as ‘ammunition’ against the false argument that patents promote innovation. The first one is this:
Yet Another Study Shows That Patents Lead To Sub-Optimal Innovation
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A few months back, two professors, Andrew W. Torrance and Bill Tomlinson, published a paper on a simulation game they ran to test out some of these hypotheses. A bunch of folks submitted this back when it first came out, but I wanted to spend some time looking over the details before writing about it. Basically, Torrance and Tomlinson create a nice simulation system that really does a good job simulating the various models for innovation with patents or in a more collaborative world. And, what they found in the simulation they ran supports what has actually happened in the real world, according to the research we’ve discussed in the past:
These results indicate that current patent systems (that is, systems combining patent and open source protection for inventions) may generate significantly lower rates of innovation (p<0.05), productivity (p<0.001), and social utility (p<0.002) than does a commons system. This suggests that current patent systems may significantly deter, rather than spur, technological innovation compared to a commons system.
Specifically, the results compared three separate models: one where everything gets patented, one where it’s a hybrid model with both patents and a common, and one that was pure commons. The results are pretty striking. In the pure commons (no patents) world, they ended up with more innovation, significantly greater productivity and massively more social utility.
Timothy B. Lee, a longtime critic of the patent system, also wrote the following essay:
The Case against Literary (and Software) Patents
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Imagine the outcry if the courts were to legalize patents on English prose. Suddenly, you could get a “literary patent” on novels employing a particular kind of plot twist, on news stories using a particular interview technique, or on legal briefs using a particular style of argumentation. Publishing books, papers, or articles would expose authors to potential liability for patent infringement. To protect themselves, writers would be forced to send their work to a patent lawyer before publication and to re-write passages found to be infringing a literary patent.
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The patent at issue in Bilski is not a software patent; it is a “business method” patent that claims a strategy for hedging against financial risk. But the case is being closely watched for its effects on the software patent issue. Patented business methods are often implemented in software; for example, a key decision on the patentability of software, State Street Bank v. Signature Financial Group, involved a software-implemented business method. And the standard articulated by the Federal Circuit in Bilski, known as the “machine-or-transformation test” has been used by the Patent Office in recent months to invalidate several software patents. The Supreme Court could ratify the Federal Circuit’s mildly restrictive standard, or it could articulate its own standard that is either more or less restrictive of patents on software.
Reiterating that software cannot be patented would be a dramatic step, but it would be the right one. Supporters of software patents insist that barring software patents would be throwing the baby out with the bathwater. But it’s not clear there was a baby in there to begin with. Empirical research suggests that software patents are dramatically less effective at promoting innovation than other categories of patents, producing more litigation and smaller revenues for innovators.
The Inquirer covered this too.
Most software companies infringe patents
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In a report, Cato denizen Timothy Lee compared patents on software and business processes to patents on English prose.
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Since patent protection was first extended to software in the 1980s, it is difficult or impossible to create any significant software without infringing one or more patents. With tens of thousands of new software patents granted every year, and no effective indexing method for software patents, there is no cost-effective way to determine which patents cover any piece of software.
Relating this to Free software and Linux, the latest major issue is to do with Tuxera [1, 2, 3, 4, 5]. One person raises the point that “There are numerous open source file systems available, why do they persist with FAT? it’s a horrid file system to begin with.”
Another person argues that “It will be interesting to see how MS will be stabbing these guys in the back, as they are wont to do.”
Rainer Weikusat writes:
It has the technical advantage of being really
simple-minded and that’s something many people
from the embedded swamp will be happy about,
because this means they have some chances of
understanding it. At the base of FAT sits a
so-called ‘ressource-map allocator’ which is
one of the oldest and most primitive memory
management schemes in existence, And who
would want to throw all this DOS-code away
for as long as there is still somebody willing
to buy it again?
.
After all, products are sold by devising
innovative marketing strategies, especially
since ‘the customer’ isn’t going to understand
anything about them anyway, not the least be-
cause technical information is usually shot
down by pointing out that anything requiring
more thought than ‘the cavemen interface’
(“point&grunt”, term coined by E. Moglen)
is just to complicated for the average
cavemen (who still spends a sizable amount
of his time with roasting raw meat on open
fires and trying to make sexually useful
contacts while doing so).
In response to this, claims another commenter:
Yes, it appears most technology marketers take Scott Adams’ advice and aim their products at the “Stupid Poor” market segment, with a view to eventually following Microsoft’s lead and breaking into the “Stupid Rich.” What I don’t understand is why they get so annoyed when people from the other two market segments try to buy/use their products. Does the ‘smart money’ have a different exchange rate?
In a more reasonable market, the chosen file system would be something like ext3, which nobody claims (or enforces) patent rights over. █
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