Software patents: it ain’t over until it’s over

An opinion by Ken Moon, posted on 1 April, presents A J Park’s view on the unanimous recommendation from the Commerce Select Committee that “a computer program is not a patentable invention”. He notes that, “This indicates the select committee accepted the submissions made by those who are opposed to granting patents for software inventions [sic]” and goes on to say:

The submitters’ arguments are highly contestable.  They believe that software patents are inconsistent with the open source model.  However, this is only relevant if the model is proven to be best and that all software developers should use it.  There is no such evidence.  Developers who use the proprietary model should be free to do so unless there is proven economic harm.

The problem I have with the idea of software patents is that I have never heard a convincing answer to the question, “What is the problem to which software patents is the solution?” Nor have I heard a convincing rebuttal to the many arguments against them, such as Richard Stallman’s analysis of The Danger of Software Patents.

I do not accept that “software inventions” are comparable to “mechanical or chemical inventions” — rather, they are akin to literary and musical inventions. The idea of software patents makes as much sense as the idea literary and musical patents. Do those who want software patents also want literary and musical patents? At the Select Committee hearings I attended, I saw no evidence presented to support the claim that software is an “invention” — it was simply assumed.

I do not understand how this in any way affects the freedom of those who write proprietary software. As far as I can see, they can continue to do so, continue to offer proprietary licences for sale, and continue to treat their source code as a trade secret. I am not aware of any evidence that excluding software patents will harm developers of proprietary software. Quite the contrary; Bill Gates has stated that, “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” It appears the lesson he drew from this was to take out as many patents as possible, so he could do unto others what he was glad others had not done unto him.

A number of people from the New Zealand free software community took the time to write submissions putting the case against software patents and took the time to appear before the committee. If New Zealand developers of proprietary software chose not to take advantage of this opportunity, one may reasonably conclude that they too see no need for software patents. Patent attorneys may well see compelling benefits from software patents, but like any service provider, they need to make their case to the customer, so the customer can make an informed decision.

It’s easy to be cynical about politicians. The committee, representing all parts of the political spectrum, read the submissions, listened to the arguments presented, asked thoughtful questions, and reached a unanimous conclusion. They decided, as many of us have done, that those in favour of software patents have simply not made their case.

Let us hope that when the bill returns to the House, the legislation passes in its amended form.

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