24 March 2009

Why Software Should not be Patentable

As I've written elsewhere today, there's a lot of activity happening around software patents at the moment. One forum where they're being considered is WIPO.

The FSFE has put together a suitably diplomatic submission to that one of its committees about why software should not be patentable; here's the key section:


the economic rationale for patents is based on providing incentives in cases of market failure, disclosure of knowledge in the public domain, as well as technology transfer, commercialisation, and diffusion of knowledge. The “three step test for inclusion in the patent system” should therefore be based on demonstrated market failure to provide innovation, demonstrated positive disclosure from patenting, and effectiveness of the patent system in the area to disseminate knowledge. Software fails all three tests, for instance, as innovation in the IT industry has been dramatic before the introduction of patents, there is no disclosure value in software patents, and patents play no role in the diffusion of knowledge about software development.

I think this is one of the best summaries on the subject. One to cut out and keep.

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2 comments:

saulgoode said...

Thanks for reporting on this. It is very interesting to see the WIPO reviewing patents and I remain hopefully optimistic that the days of software patents are numbered.

If you haven't already done so, I would recommend giving a listen to Eben Moblen's keynote address given to the Knowledge Commons' Collaborative Innovation for Development conference back in January (available as Episode 0x05 of The Software Freedom Law Show). It likewise emphasizes that patents should not be taken as an inherent "right" of inventors, but should be administered for purpose of the greater public good.

glyn moody said...

I've not heard that particular address, but I've had the pleasure of interviewing Eben several times - he's is truly amazing.