Impractical Software patents

Yahoo sues Facebook over software patent infringement [0]. Patent litigation becomes the most destructive force for web enterprises. Software patents were still uncommon 15 years ago.

Since 1999 we advocate about the risks of software patenting and fully agree with Christina Mulligan and Timothy B. Lee arguments [1] : « There’s no easily searchable database for software ideas — it’s not like cross-checking chemical formulas, which are easily indexable. » . Lee and Mulligan argue quite rightly that there’s no good way to create a convenient database for software patents. In other words trying to check for a patent infringement is all but impossible for developers.

Software patents are utterly impractical to promote innovation. Here are a few American articles that we recommend you to read to broaden your clear understanding of numerous and inextricable software patents issues. The multiplication of insane litigations is an additional proof that software patents are an inadequate tool. In reality the patent establishment is the main pushing force towards software patentability in Europe with the support of some major IT companies. Their main and sad aim is not to promote but to impede technology and distort markets.

In september 2011 James Bessen, Jennifer Ford and Michael J. Meurer [2] have published a 35 pages article : The Private and Social Costs of Patent Trolls. With accuracy they confirm the pure insanity of software patents : »In the past, non-practicing entities (NPEs) — firms that license patents without producing goods — have facilitated technology markets and increased rents for small inventors. Is this also true for today’s NPEs? Or are they “patent trolls” who opportunistically litigate over software patents with unpredictable boundaries? Using stock market event studies around patent lawsuit filings, we find that NPE lawsuits are associated with half a trillion dollars of lost wealth to defendants from 1990 through 2010, mostly from technology companies. Moreover, very little of this loss represents a transfer to small inventors. Instead, it implies reduced innovation incentives and a net loss of social welfare. »

Recently Timothy B. Lee [3] emphasizes the following calamitous aspect : »Patents are often described as “intellectual property” and patent law provides for harsh property-like remedies against patent infringers. But a property system that is so convoluted that ordinary firms can’t figure out who owns what isn’t a property system at all. Genuine property rights enhance economic efficiency by bringing predictability to the allocation of scarce resources and thereby promoting decentralized decision-making. Software patents retard economic efficiency by subjecting software firms to a constant and unavoidable threat of litigation for accidentally infringing the patent rights of others. Hayek would not have approved. »

Concerning the moral dimension of software patent reform Timothy B. Lee [4] adds : « But a property system that exposes anyone who enters a particular industry to unavoidable and potentially crippling legal liability should also offend our sense of justice »

In Ezra Klein blog you can read [5] :

  • « Software patents are impractical — unless we’ve got 2 million extra lawyers »
  • « Disputes over patent policy often revolve around moral principles. Take software patents. Many programmers think software ideas should flow freely, untrammeled by the threat of lawsuits. Others, like Nathan Myhrvold, argue that infringement is just plain wrong. »

Please join FFII [7] – the Foundation for a Free Information Infrastructure e.V – to fight against the plague of Software patents. We have to put an end to this recent and unacceptable resurgence of the feudal practices.


[0] Yahoo sues Facebook over patents; it’s war in Silicon Valley

[1] Scaling the Patent System
Christina Mulligan (Yale Law School, Information Society Project)
Timothy B. Lee (Cato Institute)

[2] The Private and Social Costs of Patent Trolls
James E. Bessen, Michael J. Meurer, and Jennifer Laurissa Ford

[3] Why Friedrich Hayek would have hated software patents ( Timothy B. Lee )

[3bis] Here’s why economists hate software patents ( Timothy B. Lee )

[4] The moral dimension of software patent reform

[5] Software patents are impractical – Washington Post (Ezra Klein blog)

[6] Software patents and the return of functional claiming
Software Patents and the Return of Functional Claiming by Mark A.Lemley

[7] Please support FFII to fight against Software patents

À propos de Rene Paul Mages (ramix)

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