Trivial patents *not the problem* (was: Re: [ILUG] Re: ILUG sends s/w patents briefing document to Irish MEPs)

[Gavin McCullagh]

In-Reply-To=08d34b664dde6d42fb589b3f855196f0 at tuatha.org
Reply-To: Irish Linux Users Group <ilug at linux.ie>
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Hi,

Ciaran O'Riordan wrote:

> There are two problems:
> 
> 1. The patent system excludes some software development models, due to
>    costs, licensing, applications, procedures, etc.
> 
> 2. The patent system would specifically prohibit the writing of useful
>    software

For what it's worth, I think it makes more sense to argue it as follows.

Patents in general are a pragmatic, anti-free-market measure which grant a
temporary monopoly on a technology to a single group.  The reason they are
granted is that without them the development of certain
high-development-cost technologies would simply not make business sense.
Given that we want these technologies developed, a temporary monopoly is
given to reward the creators (as distinct from those who simply copy the
technology).  A classic example is the pharmaceutical industry.  They are
not a general principle, they are useful only in such exceptional
circumstances.

The software industry in the EU is very innovative without software
patents.  Innovative software development already makes business sense.
Many of the largest software companies (eg Microsoft) did not require the
extra revenue stream created by patents to justify software development
when they were small.  Even in the US where they were available, Microsoft
have not made use of patents until very recently, long after becoming the
largest software company.

You should never write market restrictive laws if they are not necessary.

There is clearly an issue currently with competition in the software
industry both in the US and the EU.  If anything artificial monopolies will
only add to that.  It's no coincidence that the current incumbents are
software patents' greatest proponent.

The cumulative nature argument is useful to show why SMEs generally won't
be able to leverage patents against the big guys.

In short, the big guys are doing just fine right now and don't need the
extra help.  The small guys are managing currently without and will be
hindered by the legislation.  The total result will be a far less
competitive market. 

Gavin

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