Tuesday, March 15, 2005

Philip Albert on software patent debate

from technewsworld (Philip Albert):

The camp that opposes software patents includes staunch open-source advocates. The other camp includes proprietary software companies, and as one anti-software patents commentator said, "The only winners in the patent war are the firms that use them against other companies and the lawyers they employ."

Open-source advocates who want to use the law to abolish software patents miss an important point. "The Law" is not just a lifeless creature of statute. At the most abstract level, "The Law" is a social contract that is composed of policy choices, economic theories and social values determined by the community at large through the democratic process.

[Query: what policy choices, economic theories, or social values have played a role in recent decisions on the doctrine of equivalents? Isn't the argument settled expectations? Also, what policy choices or economic theories played a role in Lilly v. Medtronics? Wasn't the decision based on the meaning of "a law" in what was seen to be a poorly drafted statute?]

Should the telegraph have been put on hold because of its negative impact on the Pony Express? According to the economist Charles Wheelan in his insightful book Naked Economics: "There is a crucial distinction ... between using the political process to build a safety net for those harmed by creative destruction and using the political process to stop that creative destruction in the first place. Think about the telegraph and the Pony Express. It would have been one thing to help displaced Pony Express workers by retraining them as telegraph operators; it would have been another to help them by banning the telegraph."

From a pragmatic angle, both camps might find it more constructive to focus the debate not on whether software patents should be abolished, but rather on how to prevent overly broad software patents from being issued and how to fit software patents into an open-source model.

[Albert might have mentioned what Morse tried to claim.]


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