- And a response by Glyn Moody: Why the Idea of the Software Patent Does Not Fly – Open Enterprise
We read so much nonsense about patents these days. Calimaq started a #CopyrightMadness series and a blog so, sometimes, I feel like somebody should start another series: PatentBS. It is self explanatory.
Well, ok let’s start with this one from a Wired Opinion by Manny W. Schecter “Chief Patent Counsel, Associate General Counsel, and Managing IP Attorney at IBM – the top annual U.S. patentee for the past 19 years.” I won’t discuss the argument about how patents supposedly promote innovation, this rebuttal opinion already does it. So let’s concentrate on this piece of nonsense:
Eliminating patents for software will not enhance innovation or benefit our economy. Software is also the most easily appropriated type of intellectual property. Ever since U.S. courts made it clear that copyright is unavailable to protect their ideas, developers have sought to protect inventions embodied in their software via patents. Denying patent protection for software will cause these developers to look for other ways to protect their IP investment — resulting in code that is less open, less accessible, and less interoperable.
Such balkanization would discourage many of the collaborative ingredients of the very software ecosystem that has had enormous economic and technological impact.
Copyright can’t “protect” (i.e. monopolise) ideas implemented in software. So that’s why patents are used. We’ll pass on the rhetoric (ideas/inventions as if they’re the same thing).
The argument is: if we don’t grant patents to protect software developers, they’ll seek other means to protect themselves, and that will result in the production of less Free Software (aka open source software). That does not make any sense at all. Phew.
Patents and Free Software are antagonistic. They can’t work together, unless the patent owner grant a royalty-free license to anyone using the software covered by the patents, rendering the patent basically useless. So what would happen if we abolish patents? As the argument goes: we would have less Free Software because software developers would seek other ways to protect “their IP investment.” Well it’s funny, because it’s exactly what happens, and it’s a good thing.
Software is actually covered by copyright, and developers use copyright licenses to foster their development all the time! And this is exactly what’s used in Free Software, for instance with a copyleft license such as the GNU GPL. And that helps produce more Free Software, not less.