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Re: [Esp-action-alert] Listing ALL arguments againstsoftware

From: Reinier Bakels
Subject: Re: [Esp-action-alert] Listing ALL arguments againstsoftware patents
Date: Tue, 04 Aug 2009 09:20:13 -0000

You may *hate* me for saying that this is the wrong approach. But still I do. Otherwise we keep running in circles and end nowwhere.
Basically I contend:
- it is very difficult to distinguish "swpats" in a consistent, convincing way
- there is a very wide variety of (types of) software patents
and on the positive side:
- there are many forms of patent abuse
- they occur perhaps more often if software is involved
The solution therefore IMHO is to focus on these forms of abuse.

Re the nature of swpats: the counter-argument always is: "no we don't mean a windows module but a computer-controlled steel mill". During the debate about the swpat ("CII") directive, this debate went on and on. There are actually fields where the distinction is not as clear as with the steel mill, notably in the field of signal processing. Conceivably, the same module can be used both in a TV set and in a PC media player. Don't argue that these are exceptions that confirm the rule. They actually show that the basic line of reasoning is flawed, so it is hard to make it convincing!

Re abuse:
- (software) patents are often not properly disclosed. While e.g. chemists read patents indeed for information and inspiration, virtually no programmer will do that. "software" patents don't meet the "quid pro quo" commitment of disclosing knowledge in return for the exclusive right ("contract theory"). They serve merely the purpose of "reservring space in the competition realm". Even if swpats would be readable at all, programmers sually make the (economically justified) choice of solving the problem again, because that is less costly (and, frankly, more fun) than seraching a patent database. But this appraoch incerases the risk of inadvertent infringement - and in patent law, there is no independent invention defense (unlike copyright). - Software patent are often used in an anticompetitive manner, e.g. to obstruct interoperability. If the "patentable subject-matter" debate is difficult (and TRIPS allows no exceptions to be made), competition law provides a helpful "back door" approach. Having a right is one thing, exercising the right is something else. Couts acknowledge that even real property can be abused, despite the perception that it is all-encompassing. I have proposed specific competition law for interoperability (as mainstream competition law is more a kind of emergency brake). - It is a pervasive misconception, fostered by economists, that patents serve the purpose to reward investment. Nonsense! Patents do not serve the purpose of a general reward for ideas., for brainwork. Freedom of information is the principal rule, patents are the exception. The "protection" paradigm is at odds with the principle of free enterprise. Patens are akin to communism.

Perhaps it should be emphasised too that one should not be confused by arguments of legal "logic" or "consistency". Patents are trade policy. The purpose is to create a money flow from Europe (and devloping nations!) into the USA. And the purpose is to allow Microsoft to survive. MS is America's pride, but the company is in a critical stage of its life cycle. No one needs a new Windows or a new Word version anymore. So the name of the game is a switch to law to make business, aka "rent seeking" = making money without producing social value to society?

Am I contradicting myself about the relevance of legal "logic"? I think one can not ignore that the argument "software is different" does not work. There are too many coutner-examples, and a line separating "true" software patents can not be drwan - if that would be the solution at all.

Groeten, Grüße, Regards, Cordialement, Hälsningar, Ciao, Saygilar, Üdvözlettel, Pozdrowienia, Kumusta, Adiós, Oan't sjen, Ave, Doei, Yassou, Yoroshiku, Slán, Vinarliga, Kær Kveðja
private: Johan Willem Frisostraat 149, 2713 CC Zoetermeer, The Netherlands telephone: +31 79 316 3126, GSM ("Handy") +31 6 4988 6490, fax +31 79 316 7221 ----- Original Message ----- From: "Ciaran O'Riordan" <address@hidden>
To: <address@hidden>
Sent: Tuesday, August 04, 2009 12:13 AM
Subject: [Esp-action-alert] Listing ALL arguments againstsoftware patents

Dear ESP supporter,

This week I'd like help with a big task.  I'd like to make a list of *all*
the arguments against software patents.

I've started the page off with a few suggestions, but I'd really like to
hear what you don't like about swpats, and I'd like to hear the arguments in
your words.  This could get messy, but that's fine.  I have wellies.

This will be useful groundwork for specific campaigns such as Bilski-II, New
Zealand's Patents Bill, and maybe India's patents manual and other current
issues.  I've start listing current issues here:

Meanwhile, I've gotten helpful input about the situation in India, and I'll
be continuing to work on that too this week:

Ciarán O'Riordan,
Executive Director, End Software Patents
+32 487 64 17 54


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