<nettime> patenting computer software

[John Horvath <jhorv@helka.iif.hu>]

The following is an opinion I sent to the European Commission concerning
their "consulatation" on issue of patenting software. The consultation is
supposedly designed to clarify whether patenting helps to enhance or
discourage innovation. For those not familiar with the issue, computer
programmes per se are not eligible for patenting (and least, not yet)
while inventions which use computer programmes can be patented.
 
If you are interested in sending your own opinion to the EC (for what it's
worth) you can get background information to the issue from

<http://europa.eu.int/comm/internal_market/en/intprop/indprop/index.htm>

or send your comments and opinions directly to

MARKT-SOFTPAT@cec.eu.int


J



Knowledge: The Key to Success
by John Horvath


Without a doubt, there are many arguments both for and against the issue
of software patents. While many of these arguments are based on a
technical framework, there is a more fundamental basis for the rejection
of software patents. In essence, software patents act as a restraining
influence on the free flow of knowledge.

We often hear of the "information society" being knowledge-based and
knowledge-driven. Computer software epitomizes such a paradigm. The code
contained within a program is merely a set of instructions based on what
is known or can be learned from the hardware available. It is the
mechanisms for information input and output through this hardware which
enable users to interact with computers, and which differentiates these
types of machines from others.

Software, as a result, is foremost a "knowledge" product. Subsequently,
knowledge (and the ideas they produce) is most efficient when there are no
restrictions on its use (i.e., it's free). Admittedly, producing knowledge
can be expensive -- sometimes very expensive. Even so, it must be
recognised that knowledge is a cumulative commodity: existing knowledge is
the most important element in producing new knowledge. Not only is
knowledge most efficient when it's free, but the fast and full
dissemination of knowledge indubitably raises its economic value.

Consequently, delimiting the use of software through the vehicle of
patents invariably stifles innovation and the application of numerous
combinations of different kinds of knowledge. This includes research and
technical development (RTD), which is compromised as it becomes geared
more toward profit-oriented activities (establishing patents being one
such activity). This, when it should be neutral and indifferent to such
considerations.

Along these lines, software becomes a market commodity, with computer code
-- expressed in the form of a language -- treated as a trade secret which
is to be protected, as opposed to knowledge which is to be shared. This,
too, runs counter the basic precepts that have traditionally driven the
free flow of information and unhindered access (which, incidentally, was
one of the driving forces behind the development of the Internet). Such a
framework clearly does not promote innovation.

The best example of a successful, non-patented language, which can be
described as a form of open source software development, is that of
Hypertext Markup Language (HTML). The success of the Internet not only has
to do with a graphical interface that stretches across different
platforms, it also had to do with the fact that HTML code is freely
available. Not only has this enabled innovation in this area, it has also
contributed to more users using the medium and becoming more involved in
the generation of new knowledge than otherwise would have.

Finally, it must be realised that in face of the so-called "information
society" a patent is an outdated mechanism that is no longer relevant nor
applicable in this "digital age" of ours. There are many alternative
models already in use: the development and dissemination of Linux is but
one example of a solution which both encourages innovation and provides an
environment of competition among software developers. Thus, more time and
effort should be put toward developing such alternative models rather than
looking for ways to somehow preserve an archaic regime within a new world
order.




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