Software Patents: the heart of the matter

In a generally clear and thoughtful analysis of the Commerce Select Committee’s report and recommendations on the Patents Bill, Baldwins have identified the key point of the free software community’s view of software patents:

It is not clear why the Committee gave the open source Community submissions such weight.  To argue that software is unpatentable because it builds on existing software seems unusual given nearly every invention builds on what others did before.  As many innovators realise, one object of the patent system is to promote publishing of inventions.   Then others have the opportunity to learn and develop from those inventions and improve our standard of living.

Software development builds on existing software in the same way that novelists, and indeed their readers, draw on past works. Culture always builds on the past. And the past always tries to control the future; software patents are an example of this. As all software developers realise, to understand and implement a software innovation, you need to read the source code. We learn to write large, complex programs by first making small changes to big programs, not by writing a small program, then a bigger program, then a big program.

Many novelists start their writing careers by producing works which are derivative of other writers, before finding their own voices. Much of the advice given to aspiring authors (and software developers) reflects this:

  1. read widely and read a lot
  2. write, then re-write
  3. stop doing things which aren’t reading and writing

Free software developers are applying the scientific method. Releasing software under a free licence means others have the opportunity to learn and develop from it and improve our standard of living, or solve their own private problems. Reading a patent doesn’t help, that’s software alchemy; you need to “show me the code”.

The Select Committee had the difficult task of distilling a large amount of complex, and in some cases highly technical, evidence into about a page in its final report. It would be helpful to what is clearly going to be a continued debate if all the evidence presented was made available online. Free software requires free documentation. This is how we correct our mistakes:

Many a beautiful theory was killed by an ugly fact. — T. H. Huxley

As the digital economy plays an ever-growing part in the total economy, we as New Zealanders need to decide whether we want to build our future on software science or software alchemy. Based on the evidence placed before it, the Select Committee chose science.

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