Software Patents: Examples Of Unprincipled Arguments (Part 3)

Many educated people are opposed to software patents, but few make principled arguments to support their positions.

Many educated people are opposed to software patents, but few make principled arguments to support their positions.

A bad argument is easy to spot. Simply substitute “automobile” for “software.” If the argument makes the same amount of sense, or the same amount of nonsense, one can only conclude that the author is against all patents and/or has made no real effort to differentiate between software patents and patents in general.

Here is an example of an unprincipled argument against software patents. I have replaced all instances of “software” with “automobile” to illustrate my point.

“A rough poll of my colleagues suggests that the engineering community regard[s] [automobile] patents as a bad thing. Rather than fostering innovation, they stifle it. [Automobile] development tends to involve the creative combination of already existing ideas. Twenty years ago the [automobile] patent land-grab began, staking out huge tracts of the [automobile] engineering landscape. He who files first wins! The patent gatekeepers, the examiners, are hindered by limited databases of prior art in the field, by the high turnover rate of their staff, and confusion around the novelty and innovation in the [automobile] industry.”
– John and Sam (http://www.merrells.com/john/blog/archives/000069.html)

Similarly, here is an example of an unprincipled argument against European software patents. I have replaced all instances of “software” with “automobile” to illustrate my point.

“Legalizing [automobile] patents will damage European economic interests. Most [automobile] patents are held by big American companies. Those will profit from license revenues, to be paid by European [automobile] developers.”
– Lenz Blog (http://k.lenz.name/LB/archives/000288.html)

The truth is, there is nothing in the U.S. patent laws (i.e. the Constitution and the U.S. Code) that suggests that software patent should not be allowed. On the contrary, a literal reading of the patent laws suggests that many of the subject matter limitations created by the courts have no historical basis. But such is our legal system. The Founding Fathers create a nugget of an idea (the Constitution), Congress writes some laws to implement the idea (the U.S. Code et al.), courts interpret the idea (case law), and commentators try to figure it all out. Also, I would argue that historical arguments are primarily unprincipled, simply because a lot has changed since this country was formed. If you accept the Founding Fathers’ position on one issue, you might as well accept their positions on all issues, such as slavery and the right of women to vote.

So forget history for a moment. Let’s talk about software patents today.

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