There is no hope

There is no hope

Posted Jul 30, 2003 7:58 UTC (Wed) by jdthood (guest, #4157)
In reply to: There is no hope by dwalters
Parent article: Legal commentators weigh SCO's chances (Inquirer)

> the world does not begin and end at the borders of the USA

That is true. However other countries can be bullied into harmonizing their law with American law. That is where TRIPS is so useful to the USA. TRIPS is the part of the agreement that resulted from the Uruguay Round of trade negotiations.

[TRIPS] requires that 20-year patent protection
be available for all inventions, whether of products
or processes, in almost all fields of technology.

There are some exceptions to this, but software is not one of them. However, software is not listed specifically as included either (so far as I know). Given the TRIPS framework, the only way to exclude software ideas from patentability is to classify them as non-products. Most people accept that purely mathematical ideas are not patentable and even the European Patent Office is willing to say that software as such is not patentable. However, according to the EPO, as soon as software is run on a computer it is liable to perform a service, and then it is a product and so is patentable.

Whether or not to include software in the class of things that can be patented remains a political decision. Where the content proprietors have been very effective has been in obscuring the fact that there is a decision to be made. By characterizing ideas as "property", and users of those ideas as "pirates" (unless they pay up), they have managed to present the issue as one of protecting property and the rule of law (tm).

I have seen a paper that argues that mathematical theorems should also become patentable as a way of promoting progress in the mathematical sciences. Using a naïve economic model this idea might seem plausible even if it is counter to our intuition that we should not have to pay to think. The question of personal liberty aside, more realistic economic models show why our intution is correct. Mathematics, software and other things whose development occurs incrementally will probably not be developed faster under a patent regime but slower. This is a fancy way of supporting an argument that RMS has been making for decades — that society benefits from being able to share information freely without artificial restrictions imposed by artificially assigned owners.

But I am preaching to the choir here, aren't I? We don't want software to be patentable. We have to bring our concerns to the attention of legislators.

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