stefan.waidele.info

This is my anwser to Paul Graham’s “Are Software Patents Evil?”. No, I am not vain enough to think he needs my oppinion or he will read this. But it has to be said. And I need to say it, even if nobody reads it.

This is what he has to say:

“There’s nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not.”

I think there is: Physical machines are much more limited that computer-programs. I have the greatest respect for anybody who build a mechanic washing machine (just an example). The control over water, temperature, movement in different speeds and everything is something which is not trivial to do mechanically.

But if you just have to write a program which controlls the given hardware (with sensors and stuff), then I could have done so in high-school. There is nothing special about a loop and some conditional statements. Controlling a washing machine in software is trivial!

“Since software patents are no different from hardware patents, people who say “software patents are evil” are saying simply “patents are evil.”"

No. That is just derived from the faulty premise above. Many things that are tough in hardware are easy in software.

“Where Amazon went over to the dark side was not in applying for the [1-Click] patent, but in enforcing it. A lot of companies (Microsoft, for example) have been granted large numbers of preposterously over-broad patents, but they keep them mainly for defensive purposes. Like nuclear weapons, the main role of big companies’ patent portfolios is to threaten anyone who attacks them with a counter-suit. Amazon’s suit against Barnes & Noble was thus the equivalent of a nuclear first strike.”

Yes. “Mainly for defense purposes”. Especially with nuclear weapons, I would prefer something like “exclusively for defense purposes”. And then, still, we have the question about what they want to defend…

And if Paul goes as far as comparing software patents with nukes, I think he has a notion about how destructive software patents in the wrong hands can be. I don’t want totalitarian regimes to have nukes in order to protect themselves. I don’t want big companies to have software patents in order to protect themselves.

Especially since the next big company (Microsoft) is hinting that they want to use their “defensive patent portfolio” in order to nuke/sue Linux out of existence.

“Hockey allows checking. It’s part of the game. If your team refuses to do it, you simply lose. So it is in business. Under the present rules, patents are part of the game.”

While it is true that patents are part of today’s business practise, the big problem is that companies applie for patents in a way which they should not. Even while algorithms are not patentable in most legislations today, software patents (even trivial ones) are applied for and granted regularly. Paul Graham sais that this is the patent office’s fault, but anyway: If a hockey player convinces the referree that it is ok to hit somebody with the stick against the helmet, does that make it “allowed by the rules”? If a company can convince the patent-office to grand a patent which they should not, does that make it right? (I guess you are calling me a dreamer by now :)

“[MS and Oracle] win by locking competitors out of their sales channels. If you do manage to threaten them, they’re more likely to buy you than sue you.”

That is the problem: The big software companies are right now in the process of getting all their algorithm/software patents validated. Because in many areas of the world, a portfolio of software patents is not as effective as in the USA. But once it is, they can use patents to look those out of the market-place who they cannot buy: Free Software.

They call it “harmonization”, but in reality it is just a process of changing the rules of the game to their favour. It is just like trying to make “hitting against the head with the club” part of the hockey rules. It will favour the teams with the big, strong bullies against those with the quicker players.

“The third reason patents don’t seem to matter very much in software is public opinion– or rather, hacker opinion. In a recent interview, Steve Ballmer coyly left open the possibility of attacking Linux on patent grounds. But I doubt Microsoft would ever be so stupid.”

In my opinion, this only shows how big a part they play. And to pick up Paul’s comparisson to nuclear weapons: Jaques Chiraque did not say “France will nuke Iran off the face of the earth!”. Just like Ballmer, he merely mentioned the fact that France ownes nuclear weapont and that they will not hessitate to use them, should the need arise.

I think the paralells in phrasing is very revealing and shows how important nukes and patents are - for those who own them, for those who want them, and for those who would like to get rid of them completely.

“The only real role of patents, for most startups, is as an element of the mating dance with acquirers. There patents do help a little. And so they do encourage innovation indirectly, in that they give more power to startups, which is where, pound for pound, the most innovation happens. But even in the mating dance, patents are of secondary importance. It matters more to make something great and get a lot of users.”

I just want to give you this to think about: If patents on software where so meaningless, why are the big companies so keen on getting them through legislation? Why did MS threaten to move their european headquarter out of Denmark if the danish government would not vote in their favor on the issue of patents?

Just a thought of mine…