Europe's software patent war ignites again

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"... a monkey may have an idea."

I'm confused by this statement at the end of your post:

So, are your implying that I'm the strawman because you, the flying monkey, "don't think [you] performed any amputations on [me]." Well I won't buy that, because a monkey may have an idea.

If I'm "the flying monkey", then I would have no difficulty believing that a monkey would have an idea.

My best guess is that you misunderstood my comment that I didn't perform any amputations on you.

In your post you'd said that you had cut off the straw man's (then referring to me) legs. Meaning that you'd refuted what I said.

My response was intended to mean that I would not claim to have refuted your views, but that the discussion itself was worthwhile.

A straw man argument is one invented because it's easier to rebut or refute than the actual counter-argument.

I don't think there are any monkeys or straw men in this conversation. But some misunderstandings.

For example, it's true that many important ideas in the software industry are not covered by patents, as you said. And the companies which use these ideas do not make profits from them.

Instead, the most valuable properties many software companies have are the ideas they own. I'll assert further that a software company cannot become very large and very profitable without owning ideas.
A company like Red Hat shows the limits of growth of a company built on expense reduction only.

So you can be right that:

I mentioned well known, fundamental IDEAS that revolutionized the personal computing market. All of these are examples of an idea, not patented, that companies compete freely with.

And I can simultaneously be right that:

No software company, of course, would want to do without patents. Because their prosperity relies entirely on ideas, their value would be reduced intolerably if their main assets were suddenly handed over to the world.

There are many ideas in software, some owned, some not.

Similarly, there's no disagreement between your comment:

Many of the patented software claims are trivial and obvious. That's the point. There is no R&D, or invention, or nimble mind coming to a discovery before others.

And mine:

There are thousands of ideas which have qualified for patents. Some seem obvious, some trivial, some long-known.
I do not know what the percentage of dross to gold might be. I'll leave that to the "patent trolls", who don't seem disappointed.


The differences often seem to revolve around the value of earning a living, which for most people in based on the profitability of their employers. Including the self-employed.

For example, you observe:

[Some/many ideas were not patented] because software patents were not widely pursued or provided for software at those times. Still, many companies make a great deal of profit on these ideas...


The companies which did obtain patents now have a valuable resource. Sometimes IP is all that's left of the company.

There's a discussion below of Bill Gates' 1991 strategic memo.
He complains that Microsoft does not have enough patents. His company, too, was part of the culture at the time that did not value IP sufficiently. That was the historical moment.

His point was that not having IP to exchange would leave Microsoft vulnerable to licensing fees that would eat up a lot of profits. Forget receiving licensing fees; Microsoft needed patents for protection of profits while the company advanced.

In short, it's the business, the profits that are the significant aspect of patents, a fact of life.

Also, profits don't come because what a company produces is the same as what every other company produces. It's the differences that sell.

So no company made money on the ideas held in common. It's the ideas that made sales points that were important.


And again, you write:

Many of the most contentious patent disputes were based on claims that were quite obvious to all, but then one company decided to patent them to protect their marketshare or worse create a patent annuity portfolio without providing even or competing with a product based sales to offset development and support costs.


Many good ideas are not turned into saleable items by the person or organization that produces them. Should a lab be required to turn into a manufacturing company? That would certainly be a barrier to entry into the good ideas market.

There is nothing wrong with profiting from an idea without selling the products made with the idea. Having good ideas can be a respectable specialty in itself.


Finally, you make the argument that because patents can be abused they should not exist:

That behavior has cost competitors and consumers uncalculable amounts of money. Such examples include "click through" ads and browsers calling content specific applications. This one has even cost MS in legal and development expense. That is why software should not be patented.


I think that the ability of patents to warp a market is a separate issue from the value of patents. Lots of things good for their intended purpose can also be turned to reprehensible purposes.

If patents have value, then abuse of patents does nothing to reduce that value.


My contention with you has been based on your arguments as I understand them, no straw men, and I have recognized the accuracy of your views, no monkies.
I think the differences come from what you leave out, not what you put in. And what you seem to leave out most consistently is the importance of a profitable and productive (given the value of money in innovation and invention) software economy.

Posted by: Anton Philidor   Posted on: 09/22/06 You are currently: a Guest | Members login | Terms of Use

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