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Timothy Murphy writes:
> I was asked by the Consumer Association of Ireland (CAI)
> for a view on the software patent issue.
> I wonder if anyone has a few lines on this issue
> (presumably from a politically correct point of view!)
> which I could send ?
wow, they left it pretty late ;) here's some items (from a consumer
point of view, of course). Pretty much every point revolves around
how patenting increases monopolistic powers and reduces the possibility
of competition in the marketplace.
- - Patents will turn software publishing into a risky business, where the
services of expensive lawyers will be required during development.
This can have no other effect but to greatly reduce open source and free
software production, and increase the cost of software to consumers.
- - Patenting is expensive, and requires extensive legal advice. As such,
it's predominantly large companies that take out software patents,
instead of SMEs. Providing a weapon that discriminates in favour of
large companies is anti-competitive.
- - Cross-licensing deals are common practice among large corporations, but
they depend on how many patent licenses can be offered by both sides, so
they do not generally cross-license with SMEs that may have only a tiny
number of patents to offer in return. This puts forward the prospect of
a cartel of large patent-holding companies "sewing up" a marketplace
between themselves using the monopoly powers patents provide, and
blocking out competition from any other firms.
- - It's been shown that large companies intend to use patents as an
anti-competitive strategy. (To be precise: a leaked Microsoft memo
indicated that they intended to fight rivalry from open source software
this way.)
- - IBM and Microsoft are embarking on what is effectively taxation of small
software companies through "outbound licensing" of their portfolios; by
offering a license agreement for a fee on their entire patent
collection, they indicate to the company that they could either pay the
license fee now, or risk a future infringement case. Given the tens of
thousands of software patents held by each of those companies, most
companies would probably not be wise to risk the case, and pay the fees.
This of course raises the costs to the consumer of that software.
- - Patent litigation is extremely expensive; one report indicated that
invalidating a US software patent can cost millions of dollars.
Obviously, this puts that approach out of the reach of smaller companies
or individual publishers, if they're sued by a patent holder; there
isn't really any alternative apart from settling a licensing fee and
infringement damages.
- - Software innovations are already effectively protected by copyright.
Allowing patents on software will stifle competition, as a software
patent covers an idea rather than an invention, thus enabling the
patenter to effectively block competition from their rivals.
In other words, all of the aspects of software patenting will increase
the legal costs required during all stages of software development,
and thereby increase production costs and risk overhead.
Regarding the situation in Europe -- the text being handed to the European
Parliament, by the Council, is an extremely pro-software-patent text, by
permitting software patents as long as the software is of 'a technical
nature' -- without defining what that means. Given that it's clearly
arguable that all software is technical, and since patent offices earn
money based on the patents they accept, rather than those they reject,
this is a loophole the size of a bus. Many of the desired amendments
concern cleaning up this obvious omission. Many pro-swpat sources
will claim that it doesn't permit "software patents as such", but the
"as such" is key here, using that "technical" loophole above.
For more, http://www.ifso.ie/projects/swpats.html and
http://www.nosoftwarepatents.com/ are both pretty good (and readable).
Hope that helps,
- --j.
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