24 May 2010

Hacking through the Software Patent Thickets

Most people in the hacking community are well aware that patents represent one of the most serious threats to free software. But the situation is actually even worse than it seems, thanks to the proliferation of what are called patent thickets. To understand why these are so bad, and why they represent a particular problem for software, it is necessary to go back to the beginning of patent law.

On The H Open.


Crosbie Fitch said...

That patents were granted to discourage secrecy is another pretext - just like copyright's pretext being to encourage learning.

If it is commercially advantageous to keep an idea secret then it's STILL commercially advantageous to keep it secret. Why patent it?

Patents are simply monopolies on things that you cannot keep secret, e.g. products that embody the design. Why grant monopolies to manufacturers of products that betray their own design?

Patents are simply institutionalised monopolies. There is no benefit to the public, only to the industrialists who lobbied for them (and consequently to those lobbied).

Every time people repeat the received canards that monopolies advance progress or otherwise benefit society they simply compound the last few centuries of this self-perpetuating indoctrination.

The truth, that monopolies actually impede technological progress by effectively prohibiting the use of modern technology, is too horrific to countenance. It is thus far more comforting to believe that we have progressed BECAUSE of patents (not in spite of them).

Patent hoarding corporations know we'd all be far better off without patents, but the more powerful they become with them, the less it is in their commercial interest to abolish them.

You may as well expect a king to espouse the abolition of monarchy.

Glyn Moody said...

@Crosbie - although - as ever - I essentially agree with you, I think that in the early days it may have been advantageous to grant a temporary monopooly in return for disclosure. but those days a long past...

Crosbie Fitch said...

I agree that many think that "in the early days it may have been advantageous to grant a temporary monopoly in return for disclosure", but I don't agree that monopolies actually do prompt or incentivise disclosure - or ever could have done.

For example, here am I, a 17th century inventor possessing a valuable and secret design that I am already having success at commercially exploiting. Why would I disclose my secret in return for what I already have? I already have an effective monopoly.

Remember, the argument is not that I don't want a monopoly (and as many privileges as I can get), but that you feel that UNLESS I am offered a patent I will never disclose my secret (or my secret risks being lost to mankind).

For this argument to stand you have to demonstrate two things:
1) Without a patent I will not disclose my secret design.
2) If offered a patent I will.

I put it to you that I only take advantage of a patent because either I cannot avoid disclosing my secret design or I consider the risk of disclosure particularly high. And those are both eventualities that occur without patents, so they are not brought about by patents, but ameliorated by them. Thus patents are 'protection' sought by industrialists - not incentives to disclose industrial secrets.

If I am confident of preventing disclosure then I have no need of a patent, even if offered to me. That's why proprietary software developers don't publish their source code despite the monopoly of copyright - the monopoly does not incentivise them to disclose what they don't need to. Similarly, patents are only registered for designs that must be disclosed (and they reveal as little as possible even then). We simply don't know about all the secret designs that can be kept secret, because they don't need to be patented.

Can you contrive any example (at any point in history) where a patent might persuade someone to disclose a design that they would otherwise keep secret?

Glyn Moody said...

@Crosbie: as you say, it may be that it's not possible to keep things secret, but it's not irrational to regard a patent as a bargain worth making, if only because it's less stressful...