I’m really against the idea of intellectual “property”. Certainly when it’s applied to human non-physical expressions such as software, since these types of expressions do not exist in isolation - they exist communally.
In general, it’s true that you can be the first to come up with an idea but only in rare and more academic cases will you remain the only one (if you’d keep your idea secret). Others who study the prior art in a field, especially in applied science and engineering fields like software, will come up with the same idea (or very similar) - proof of the power of the shared knowledge base that allowed you to come up with the idea. Nevertheless, if you put together some object or device that solves some problem ingenuously, sure, you should be able to own/sell that one object and any copies you make - but not also all the similar objects or devices that someone else would make (if they would figure out a way to copy it). If you need support for developing your solution, in most developed countries there are very generous R&D tax credits and grants that can be obtained so actually, I’m not sure why a patent system is so useful for innovation anymore, certainly when weighing the potential for patent office corruption, misinterpretation & confusion due to badly defined patents & patentlaw and locking up of markets against the supposed benefit of innovation in the form of financial gains an inventor can make. Really, these days being an inventor is nothing special since fresh minds are churned out by universities on a daily basis by the thousands all over the world - creativity galore for a penny ! At any rate, surely for fields that involve development of intangible expressions like software, the consequence of the different properties of these intangible expressions is that a service and not so much ownership is the item that can be valued by the market and as such can be used to build a business upon.
Some suggest that software patents are here to stay, but I’d rather not accept that. Even if they are difficult to enforce because it’s often possible to work around them and hence appear harmless, they still create a litigous business environment. Hence they are just a waste because of money spent on lawsuits defending yourself or attacking someone else - no innovation there, I’d say. To win that game you need a good (expensive) lawyer and hence small companies can pack it in. And what a hellish job software writing would become: you’d need to check every few lines if your code hasn’t been patented. Note that the spectacularly rapid development of software happened without any patent protections. Apparently software developers feel quite comfortable with the existing copyright protection system. Moreover, I think the idea of software patents is symptomatic of a trend to limit and not expand our individual freedom, in this case specifically freedom of speech. It seems to me it’s all an un-necessary evil these days. It once served a function in the nascent industrial economy but especially in the knowledge economy it’s out of date. We need less patent and copyright protection mechanisms, not more. I speculate that the free-er knowledge can flow the better this new economy will develop. Try to tie it up and it will go where it’s free again, just like money. In this regard it’ll be interesting to see what will happen in Brazil where they have a rather different approach to knowledge, ideas and other human expressions.
Perhaps because I’m slightly more interested in knowledge than in money and material possession (actually, the real algorithm to balance these two issues is a bit more complicated), I oppose the software patent directive in the EU for the following reasons:
- Software technology developed rapidly without patent protection, so the perceived advantage (of patent protection as an incentive for inventors) to be created by the directive is null and void.
- Litigation (offensive as well as defensive) will increase enormously if the directive is approved. Resources will be used for litigation and not for innovation. Consequently, software SMEs will suffer badly because they do not have the resources for all the litigation.
- The directive’s definitions and clauses are ambiguous and hence will be abused, which will create more chaos and uncertainty in an already highly volatile industry.
- The directive has been un-democratically processed by the EU. Non-transparent procedures were applied to push through a one-sided version without democratically added amendments.
In my opinion the directive was just created to give larger companies better protection against the threat small, innovative companies pose in this rapidly changing field of software. This is not only just plain anti-competitive, but it would make it even harder for small companies to survive/exist in the tech business. And small companies represent a certain business culture with an associated lifestyle that I’d rather not see further marginalized - rather the opposite.
The way I see it, what’s at stake is our intellectual freedom. Without attention to the matters discussed above there is a chance that we end up living in a world where the freedom to think and express your thoughts is going to be as limited and hazardous as walking in a 3rd world metropolis.