Benjamin Geer on 27 Oct 2000 19:27:32 -0000

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[Nettime-bold] software patents

This is my contribution to the EU's consultation process on software

As a software developer, I find the idea of software patents
abhorrent, for several reasons.

The global information infrastructure depends on the use of
open standards.  Patents might have made sense in the days when
products from one vendor did not interact with products from another
vendor.  However, computer programmes are increasingly interdependent.
For example, TCP/IP, the network protocol on which the Internet is
based, is in the public domain.  If its authors had patented it, we
can be sure that the Internet would not exist today.  Similarly, the
growth of electronic commerce has been made possible by the existence
of open standards for secure electronic communication.  If Netscape
had patented SSL, it is very doubtful that electronic commerce would
have got off the ground.

As software patents proliferate, it becomes increasingly
difficult, if not impossible, for most software companies to determine
whether any given piece of code that they are developing infringes on
one of the multitude of software patents in existence.  The legal
risks of writing any computer programme could well become prohibitive.
This factor alone could cause innovation in the software industry to
grind to a halt.

Software patents cause the industry to waste time and effort.  In some
cases, when a patent covers an algorithm which everyone desperately
needs, the industry as a whole works around the problem by creating
non-patented alternatives.  This is what happened to the encryption
algorithm, RSA.  (As a result, RSA has not renewed its patent, which
expired this year.)  This process wastes time and money.  Moreover,
the result is that the patent does not benefit its owner.

However, it is possible that a patent may be issued for an algorithm
that is universally needed, and for which no alternative can be
devised.  In this case, we can expect several harmful effects.  Large
companies, which can afford to pay the licence fees, will flourish at
the expense of smaller ones.  Fewer applications will be developed
using the algorithm in question, and they will cost more; it will
therefore provide less benefit to society.  Not only the software
industry, but the world as a whole, will be held to ransom.  That is
precisely the sort of monopoly power that no company should have.

It is folly to think that software patents could be beneficial to the
industry or to society at large.  They can only result in hopeless
legal quagmires, and in the stagnation of the software industry.

Benjamin Geer

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