Re: Software Patent Concerns => New Black Markets?

[Ludovic Brenta <ludovic.brenta@insalien.org>]

The Free Software Foundation is campaigning against software patents.
The arguments are well known by now.

First, software consists of algorithms, and algorithms are a special
form of mathematical proof.  Can you patent a mathematical proof?  For
example, can you patent to algorithm to compute the value of e using
the series: e = 1 + sum of (1/n!) ? The answer, historically, has been
a resounding NO.  Mathematical proofs are published under copyright
law, not patent law.  Software may also be construed as a kind of
musical partition, which is "played" by the computer.  And music is
not patentable.  What is patentable is the computer itself, i.e. the
hardware, and the process to manufacture it.

Second, the patent system was designed to promote the advancement of
technology.  By contrast, software patents tend to hinder such
advancement, as Warren pointed out.

Third, the patent system was created in the interest of the general
public.  Instead, software patents are being used in the interest of a
few mega-corporations.  They mainly use their portfolios of patents in
two ways.  One way (a) is to block smaller competitors from entering a
market; this includes SMEs, and hobbyist programmers who work for free
and cannot afford a lawsuit, _even if they win the lawsuit in the
end_.  The other way (b) is to enter into "cross-licensing agreements"
with their bigger competitors [2].  The only beneficiaries of these
"cross-license agreements" are the mega-corporations involved, _not_
their customers, certainly not their competitors, and certainly not
the general public.

These three reasons alone explain why there is a petition online [1]
where all US voters are invited to lobby against software patents.

Fourth, there is a geostrategic twist to this.  Europe does not have
software patents, but the US and Japan do.  American mega-corporations
are lobbying the European Parliament to pass a law that permits
software patents [3].  The European software industry is much smaller
than that in the US, and consists mainly of SMEs.  If the EP adopts
software patents, then these SMEs will become easy targets for the US
mega-corporations, as per (a).  More importantly, it may well be
possible for European governments, armies, and utilities to get sued
over use of patented cryptographic or other algorithms.  I dare not go
further into this reasoning, as the consequences could be
catastrophic.

[1] http://www.petitiononline.com/pasp01/petition.html
[2] http://www.zdnet.com.au/newstech/enterprise/story/0,2000048640,20272597,00.htm
[3] http://swpat.ffii.org/events/2003/europarl/07/

-- 
Ludovic Brenta.