Russel Winder's Website

On Software Patents, ACTA and "Big Money"

_ There is a thread about software patents on the D programming language mailing list (digitalmars-d, cf. I started to write a small reply to one of the emails but it became something I thought I should post as a blog entry, so here it is - well a slightly subedited version of it anyway. _

"Big Money" keeps insisting that the whole patent system is designed to allow people who have inventions but not the resources to exploit them, a route to obtaining remuneration by allowing others to do the exploitation. This has always been a specious argument. Even if it were not, and whatever the original use of letters patent that led to the patent system, this system, especially in the USA, has turned into a business tool for "Big Money" to ensure control of all exploitation is handled by "Big Money". To preserve power in the hands of "Big Money", the patent system has been evolved into a game that only "Big Money" can play, small players are systematically excluded. (Of course, lawyers are the only real winners as they get paid win or lose.)

Where the invention is something that can only be exploited by there being something physical that must be manufactured, then there are arguments that patents are a useful tool. Where the invention is a business process or a software technique (or a user interface technique?), I don't see that patents serves any purpose other than preservation of control over innovation by "Big Money". The exact opposite of the avowed purpose of patents.

I have yet to see how business processes, algorithms, and programming techniques are anything other than ideas or mathematics, and ideas and mathematics are supposed to be not patentable. As far as I am aware the UK Patent Office still does not issue software patents, though the EU Patent Office, seems to have started to try, under pressure from "Big Money" I suspect. (I agree it is easy to blame US companies and ignore the fact that European and Asian companies are part of the cartel when Microsoft, IBM, HP, etc. are the easy names to roll off the tongue, so "Big Money" here is not synonymous with large US corporate.)

Sadly, the Anti-Counterfeiting Trade Agreement (ACTA) appears to have been somewhat hijacked by US "Big Money", via the US Trade Representative (USTR), as a tool for imposing the US way of patents onto the rest of the world (*). This means software patents will have to be granted everywhere that ACTA applies. No matter how much lobbying the FLOSS community do, I bet "Big Money" will not fail to sieze the opportunity to ram through the whole "software techniques are not ideas or mathematics, they are patentable" philosophy.

Perhaps then the only defence these days, especially in the USA, and sadly if ACTA is signed into place, the rest of the world, is to be a signatory to the Open Invention Network (OIN). However appealing though, even this is just a tool for "Big Money" since only by having significant resources can you actually patent something that you can then magnanimously donate to the OIN patent pool - have you noticed that "Big Money" is very selective about which patents get donated and which don't?

So it seems the only hope for small players to do any innovation, indeed any work, in the software arena, is to be ignorable by "Big Money", i.e. do stuff that doesn't matter or doesn't constitute a threat to "Big Money". Either that or the policitians of the world spontaneously see the light, that they are being herded by "Big Money", and disallow software patents forever.

All in all though it seems the days of the small independent software development organization doing anything innovative are strictly limited.

(*) You might want to follow Simon Phipps - Wild Webmink - on this.

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