EU Software Patent War Ignites Again 168
pieterh writes "ZDNet UK has a detailed article on the heating-up of the software patent debate in Europe. A new motion before the European Parliament calls for a harmonised patent court (EPLA) that would be able to enforce software patents across Europe. This comes just 15 months after the EP rejected the infamous Computer Implemented Inventions directive." From the article: "Patents on software are formally disallowed under the European patent system, but are routinely granted by the European patent office, according to critics. They are currently difficult to enforce in many EU member states, something critics say would be changed by the failed software patent directive, and now by the EPLA. Software patents are generally considered to add to the legal costs of large enterprises, as well as creating a hostile legal environment for smaller software businesses and open source projects."
the best solution, obviously (Score:5, Insightful)
Yes, because clearly the best solution isn't to simply fix the law, but to create an entirely new governmental bureacracy.
Re:the best solution, obviously (Score:5, Insightful)
The law is fixed. The law specifically disallows software patents. The "infamous" directive mentioned in the writeup failed, so the law still specifically disallows software patents. The patent office issues them anyway. Isn't it funny how laws telling people what to do result in fines, jail time, and execution if you break them, but laws telling the government what to do have absolutely no punishment when the government breaks them?
So to enforce the patents, whoever is behind this clusterfuck intends to create an entirely new court system, specifically for the purpose of "legislating from the bench".
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Right. Which means the law is broken, because the penalties aren't a deterrent.
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I support laws that enable the public at large to admin a kick to the testicles of anyone proposing to patent any software. To support ERA, give the offenders a choice between the public kick in the nads, or a double-bit axe shoved up teh *ss.
This software patent insanity needs to stop and just go away. Copyright reg's and laws already cover software code- we don't need to overburden the patent system with this shite!
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but laws telling the government what to do have absolutely no punishment when the government breaks them
The EPO is not a government. It is an independent institute, that has the EC-granted power to award patents.
However, even the EC is now getting weary that, in practice, the EPO is actively involved in policy-making, [ffii.org] instead of just executing the policies set by the EC.
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Join me, my children.
Won'drous pa-tent fill'd with light
Bless'd be thine en-dur-ing sight
Yield thine cof-fers 'fore my suit
Ren-der o-thers' ef-forts moot.
Righ-teous pa-tent guard these joys
Lest a-no-ther have such toys
Hold for me mine right-ful worth
All these thoughts u-pon this Earth.
Beau-teous pa-tent for mine good
As an in-verse Ro-bin Hood
Suck-le-ing a
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The law isn't actually broken here, the issue is more one of lack of enforcement.
but to create an entirely new governmental bureacracy.
However not one which would actually do something useful. e.g. compile a list of bogus patents to prevent any possible attempt to enforce them.
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You could argue that it would encourage innovation merely because it reduces the cost of performing patent searches by weeding out a certain amount of the crap that already exists, making patent lawyers cheaper.
The patent office subsist from the fees they earn from patent applications and therefore have no real incentive to examine pa
Nostalgia... (Score:5, Funny)
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The mission statement of the copyright act under which I grew up:
"The main object to be desired in expanding copyright protection accorded to music has been to give the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and a
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How does the patent system protect creative work? By disallowing anyone else from using the same idea after you've patented it? Is that what you call protectiong--by preventing others from benefiting from an idea that others could have just as easily arrived at on their own? Just look at all of the recent patent-related lawsuits. They only protect the right of individuals to monopolize an idea and prevent society from benfiting from the idea or taking the idea further (and in some situations, from even real
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I'm sorry... this just doesn't compute. Allowing people to COPY ideas is now equivalent to "creative work"???
Say someone invents X and patents it. Then 50 years later another young man independently thinks of the idea to build X.
Have you ever heard of "patent terms"? Patents grant exclusive licensing rights FOR A LIMITED TIME.
Patents basically punish people for not being the firs
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In which case the "obvious test" might apply. This cannot happen where the people examining patent applications are not experts in the subject(s) concerned. Especially since "obvious things" may not be well documented because anyone wr
It's too bad... (Score:5, Funny)
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You must be new here... (Score:2)
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prior art ... (Score:2)
IMO, in case of stupid and/or obvious patents (like the one described by TheWoozle) prior art never prevents the patent from being granted nor does it ever allow it to be invalidated.
Why?
We're talking stupid and/or obvious patents here. Logic and logical arguments does not count.
:)
Sad, isn't it ? (Score:5, Insightful)
In rebuttal, the three groups have filed a motion calling for "balance between the interests of patent holders and the broader public interest in innovation and competitive markets"
Sad, isn't it, when the groups opposing this are calling for a "balance" between patent holders and the greater public good.
Surely, the whole point of patents was "the broader public interest in innovation and competitive markets" ?
So how can McCreevy and co. get away with opposing "the broader public interest in innovation and competitive markets", the will of our elected EU politicians, and the wishes of by far the majority of the population who have expressed an interest in the matter ?
I am apalled (Score:3, Funny)
You mean member states aren't willing to enforce patents that aren't allowed to be granted in the first place? What is this world coming to?
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international issues (Score:5, Interesting)
For example, if patent office A says that something is obvious, but patent office B in another nation claims that it isn't (and subsequently grants the patent, potentially to another company) what are the possible ramifications and remedies? Or is a company expected to request patents by all offices? Or once a patent is declared invalid in one jurisdiction is anyone else (in another nation) allowed to apply for it?
What I just asked could be complete non-sense, but it is something that I am curious about.
Re:international issues (Score:5, Insightful)
The answer is you sign a "free-trade" treaty to "synchronize" your "intellectual property" laws with the United States. Then you just do whatever the Americans tell you.
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You horribly misspelled "harmonize".
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Why SMALL businesses reject software patents (Score:5, Insightful)
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If you want to argue that the entire patent system should be abolished, feel free to do so. Otherwise, I'd love to hear what makes software patents a special case from a small vs. large business perspective...
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I acknowledged no such thing. I think patents can be quite useful for small businesses. My point is simply that all the rage directed at software patents in particular is somewhat misplaced.
Look, in an ideal world, small businesses would be able to sue big businesses to their heart's content. But in the real world, some people have more money than others. Unavoidable fact.
That doesn't mean that patents shoul
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Putting those words in quotes implies that I said that, which is completely dishonest. I said nothing of the sort. What I'm saying is that it's inevitable that some businesses won't be able to afford to assert their patents. However, in the absence of a better alternative, just because some businesses can't afford to assert their patents doesn't mean that NO businesses should be able to.
"America has the bes
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Sorry, I have been coding for over thirty years there is NO "invention" taking place in that process any more than a plumbers or carpenters solution to a tricky bathroom remodeling around a basement support pole is patentable. Solving these issues can be done by any competent practitioner, similar coding would be created by a majority of the programming community given a correctly defined problem. I.E. what we do is OBVIOUS and NOT patentable.
D
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With all due respect to you, many of the inventors I meet with ar
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This may be true but this has nothing whatsoever to do with th
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First of all, you have misinterpreted the meaning of MPEP 2142. That section merely sets forth that the patent examiners have the initial burden of proof to reject a claim under 35 USC 103, and if that burden is not met, the applicant has no obligation to rebut a presumption of obviousness. This section has nothing at all to do with the rest of your post. But let's overlook that and return to your point.
At which they have failed miserably to date.
This sta
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Way to miss the point and mangle my words. All inventions obviously start out as ideas. But please -- continue to explain to me how software is merely equivalent to a mental step.
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Illogic like that will get you nowhere except a state of embarrassment. It ought to be crystal clear that without software patents any SMALL business can copy Microsoft's ideas just as much as they can copy the ideas of the SMALL business. That is the level-playing field, and on it, small businesses can compete well against big businesses. Tha
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Your naivety is scary. The problem isn't whether you can copy the idea -- it's whether you can actually COMPETE. Do you have millions of dollars to throw at advertising? Government lobbyists? Exclusive contracts with major institutions? I don't think you understand what it takes to be successful against these companies.
As for your intere
Re:Why SMALL businesses reject software patents (Score:5, Informative)
Your ignorance is scary. Do you really believe they need your help, and the patent office's help to continue succeed as they are already? They don't need software patents NOW, so what makes you think they need them at all?
Do you have millions of dollars to throw at advertising? Government lobbyists? Exclusive contracts with major institutions?
This is absolutely laughable. Why the hell do you think litigation should be the answer to everybody's problems?
Have you ever worked for a small company? Worked with one? Worked in a country outside the USA? _LARGE_ business names that you've never even heard of, let alone the ones you have, employ a tiny tiny fraction of employment to the workforce the world over. Consequently they also provide a tiny fraction of overall services to other businesses, and government.
Your understanding of business seems to be lacking, although I'll also admit I'm just an engineer that happens to work for a small company. This year we've done several contracts for the federal government of Australia; and one for a large multinational. The rest of our business is to other small businesses, but by no means do we need: government lobbyists (well, we do now - because we have software patents, thankyou FTA!), advertising dollars, or "exclusive" contracts with major institutions (we're already their best choice based on technical merit, we don't need secret handshakes to earn money).
I don't think you understand what it takes to be successful against these companies.
All these guys are asking for is the status quo, like he said. Not world domination - just to keep doing what they're doing. Patents are meant to encourage innovation which benefits mankind by way of enabling a temporary monopoly that rewards the inventor, NOT to encourage monopolies (using ideas that are often: obvious, duplicates of, or outright created by other inventors years earlier), NOR are they meant to simply act as a vehicle to crush competition.
MOST engineers I know from university are employed by small niche companies, some of them even employed by big names/big government for parts of contracts these guys tend to be best at. It's amusing that without even looking, they are fully aware of some of their products infringing on patents (thanks to industry journals publicising stupid patents) from their big-name competitors - the best they can do is hope they stay small enough to avoid attention. You do not need to be "number 1" to be a useful entity. Are you saying all small businesses should be abolished because they're useless? That there's no point to them, so stepping on their toes doesn't matter? The point is that without patents, small businesses are turning a profit, employing most of the workforce, but what you're saying is that you know better?
Next we'll see music patents. Seriously, the biggest threat to small business is other businesses ripping off their copyright, which is much simpler to prosecute even if the other side has a huge army of undead lawyers.
I'm an engineer at a small company (less than $2 million AUD a year), and I'm holding up a small system that's completely developed in-house used as part of our service business. We are profitable because my wages plus off-the-shelf hardware costs a fraction of what the license fees for an off-the-shelf software product with proprietary hardware would be. Thanks to the Free Trade Agreement with America, we're now open to frivilous patent litigation from the big name companies selling their solutions in the USA and elsewhere.
Where does that leave my small company? Up shit creek, actually. We have no interest in filing patents for "our" innovations; what the hell would we fight them with? A
Correction: Re "tiny tiny" fraction of employment (Score:2)
huh (Score:3, Insightful)
So basically you are a flunky who makes a living from the patent industry. That explains your hysteria: terror. Wouldn't it be horrible if we were free to think? Don't think about it before asking your masters at the law firm.
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Let me get this straight: if somebody writes code for 30 years, that makes them "experienced" and entitled to an opinion. But if I work for a law firm, that makes me a "flunky."
That's not only insulting, it's also absurd.
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Spare me the sanctimony. Making claims about my occupation and vested interests without knowing anything about me is no better than lying. In either case, you've fabricating information about me to forward your agenda. It's dishonest and reprehensible. And accusing me of be
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I write hundreds of potentially patentable algorithms and combinations of algorithms every week Writing one is a minutes work. Checking if it in itself, or in combination with some other part of the software violates a patent is a major project for a patent attorney.
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No you don't. Pure algorithms aren't patentable. You need to understand that in their current state, software patents are essentially business method patents, tied to a computer structure. They are, essentially, patents on an inventive computer-implemented means of accomplishing some task.
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I'm sure there's prior art for that. It's not patentable.
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http://en.wikipedia.org/wiki/Tab_(GUI)#Patent_Dis
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I'm willing to bet that Adobe held a patent for a fairly specific use of tabs, and that's what Macromedia infringed on. I'd also be VERY interested to learn what the countersuit involved, since it resulted in Adobe paying out more than it won in the initial suit.
Seriously, a couple of vague sentences in Wikipedia, lacking references to source materials, doesn't do much to prove a point.
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Nice try.
Seriously, if you're going to point to a patent as evidence, point to the PATENT, not somebody's (probably ill-informed) opinion about it.
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Yup. And that's what we're talking about. Some people agree with the law, and others don't. You're simply restating the problem.
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Why everyone else should reject them... (Score:2)
Where so-called "intellectual property" leads us is nothing short of enclosure of the mind.
Welcome to Democracy (Score:5, Insightful)
I realize this is kind of a sappy/idealistic post, but, um, I think there's some measure of truth here.
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While I tend to agree about the price of liberty being eternal vigilism, it's not clear from your post how that applies to software patents.
Whose liberties are being subverted by software patents? Don't say small entities -- they have exactly the same liberties as large entities. The fact that they have fewer resources for legal battles is a function of our economic system, not patent law specifically.
Re:Welcome to Democracy (Score:5, Insightful)
For one thing, software already has copyright. Why does it also need patents?
Say I write a song with a I-IV-V progression. I have copyright on that song now. Should I also be able to patent the I-IV-V progression and begin suing everyone over it?
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Because software inventions are closer to mechanical inventions, with modules analogous to moving parts, than they are to a piece of art or prose.
Shouldn't the INVENTION be protected, not just the specific implementation of the invention?
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Actually, the patents on mechanical inventions do patent the specific implementation, and not the idea itself. You cannot patent the concept of converting flammable fuels into motive force, but you can patent a specific implementation of an internal combustion engine. S
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which is the same as saying you can't patent an algorithm
but you can patent a specific implementation of an internal combustion engine
which is the same as saying you can patent a specific use of an algorithm.
Your example is entirely consistent with software patents.
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which is the same as saying you can patent a specific use of an algorithm.
No it is not. It is the same as saying you can patent the implementation of an algorithm, which is already covered by copyright. use != implementation.
Why was the parent modded up at all? It is non-sensical.
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Look, you're still not getting it. Mechanical patents are no different from software patents. You patent as broadly as you can while getting around the prior art. Using your engine example, you wouldn't try to patent "a gizmo of type X connected to a doodad of type Y to form a combustible engine." You would try to patent "a gizmo and a doodad connected to
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This approach is then a real problem. Do you really deserve to "own" the ideas in the patent you're writing? The second it's filed, how many real-world implementations out there are suddenly infringing because other developers had to follow similar logical processes to arrive at a solution that solves the same problem?
I can't help but think that the real innovators that advance technology in this world are disadvantaged, stifling progress -
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Wow, you really don't understand patents, do you? If other implementations are already out there, it's called PRIOR ART, and the patent is INVALID.
I can't help but think that the real innovat
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This still costs money to prove. Especially if you're talking about US companies suing in your own nation, the court costs awarded to a successful defense are generally a ceremonial detail (supposedly, typically, extracting your court fees from a foreign US company requires setting up legal action in the USA).
That's funny, considering the amount of money that large companies pour into technological research.
This
Re:Welcome to Democracy (Score:4, Insightful)
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No, it's not. When patenting mechanical devices, you really must itemize every single gear and doodad, and how they connect to each other, and what they do. You can't simply say, "I'm gonna burn some fuel and use the heat for energy" (or, "I'm gonna use bubble sort to sort stuff"), you must say exactly how your engine converts heat to motion with pistons, valves, and whatnot (or, you should be required submit your exact source code
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If you change the words of a book, you no longer have the same book. In that sense, a book merely implements itself. Not so with software. You can use a completely different code base, a completely different operating system, a completely different hardware base, and still arrive at the same result. That RESULT is the invention, i.e., the PURPOSE of the software. A book is not at all comparabl
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But you have the same INVENTION. You are missing the entire point of software patents. Nobody wants to patent their specific code -- they want to patent the inventions that happen to be implemented in code.
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You mean you don't come up with an invention before you start writing the code? Remind me never to use your software...
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This is indeed a mental disconnect between most programmers and most proponents of software patents. Programmers in general do not feel they are "inventing" when solving the hundreds of problems when they are programming. Just like a writer doesn't feel he is inventing while solving logical problems in his plot, a mathematician when solving logical problems in his proofs, etc.
It's
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But software patents always amount to giving a monopoly on an idea, not an implementation of an idea.
Patents in ALL areas are as broad as the applicant can get away with. If you don't think mechanical patent ap
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Can you give an example of such an "EXTREMELY narrow" software patent? I haven't seen any yet. Of course, my definition of "EXTREMELY narrow" may differ from yours, but I'm still curious about what you consider to fulfill that condition.
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For one thing, software already has copyright. Why does it also need patents?
Non-software patents are no different and have the same relationship. You can get a copyright on the implementation design and a patent on the abstract design. Chemical process patents for example, which no one seems to care about, are entirely indistinguishable from software patents in this regard. The idea that software is somehow different on the basis of a copyright is a fallacy and obscures the real issue.
Which is not
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I don't see how a broken economic and legal system justifies patenting what are a cross between a mathematical formula and an instruction booklet.
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I'm not sure I understand your analogy... so before I respond, can you please provide an example to clarify?
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Most likely because you don't know anything about writing software. If you did, you'd understand how much patents are an incredibly poor fit as a tool to enhance the software industry.
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Or maybe I do have experience writing software, and just happen to disagree with you. Nah, that's impossible.
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If you think that's true of me, then explain your point of view. I'm not just going to take your word for it that I don't know what I'm talking about, ya know?
software patents (Score:2)
I can't for the life of me figure out what makes people hate software patents more than other types of patents...
I hate patenting software for two reasons:
Say I come up with a nifty program that allows users to do X, so I market it. The next thing I know I get slapped with 1, or 2, or more lawsuits because several others had already patented a number of t
Do as we say, not as we do... (Score:2, Interesting)
If the EPO is not liable, then senior EPO staff or examiners must be personally liable because these (invalid) software patents are not issuing themselves. Perhaps that mister McCreevy (who is not a Microsoft sock-puppet) could contribute his personal wealth and spare time to the defense of the liable party.
If the EPO are not liable for their actions then why would a private company or indi
Hostile to small business? (Score:1)
protection against Microsoft (Score:2)
if you're a small software provider and you've come up with a neat idea, you'd better hope that you can get patent protection, because nothing else is going to stop Microsoft from using your idea, cutting your price, and taking away customers with armies of marketroids.
Yeah, like MS can't just take your idea and say "We've got billions of dollars in our war chest so go ahead and sue us. Even if perchance you win millions what they've spent in legal fees and awards to you will still be less than what the
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Remember, in the legal world, just because you can't afford it doesn't mean you won't find someone to take it on for you.
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Clearly you do not understand the difference between patents and copyright. Copyright merely covers a specific representation of an invention. Patents cover the fundamental nature of the invention itself. Can you imagine coming up with an amazing invention in Java, only to have Microsoft copy it in
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So just because the law is written a certain way, that means it's completely rational and correct?
I'll be sure to remind people of that the next time the DMCA comes up in discussion.
Can you imagine comming up with an amazing 'invention' in your latest novel, only to have another author write something similar in a completely different book? Personally, I'd be flattered.
Since when does flattery have anything to do with business interests???
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It's not just the law, it's the opinion of the majority and was the opinion of the patent office before a wealthy minority began trying to force a change.
In other words, "The majority agrees with me, therefore I am right."
Why don't you go do that if it makes you feel better about losing this argument!
Good counterargument.
Since when do hard working, ligitimate businesses object to a little healthy competiti
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I have to wonder if you're just using hyperbole too much, or actually believe Microsoft is the biggest threat to small software companies...
In terms of dollars, employees, market cap... Microsoft is irrelevant in all but the most obscure software business discussions (i.e., mainstream desktop consumer apps). IBM grosses more in revenue in softw
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It's called an EXAMPLE. People are complaining about advantages to large businesses, and Microsoft is the largest business that immediately comes to mind.
You could just as easily substitute any number of other big players who hold lots of software patents.
Why don't you focus on the topic instead of nitpicking?
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I've yet to see any software developers, and I know dozens, who actually think software patents are a good idea. Then you can weigh up the attitudes of Oracle, Microsoft, IBM - and a slew of other large companies, to find that their attitudes towards software patents is differing shades of apathy, annoyance, and outrage.
Why don't you focus on the topic instead of nitpicking?
Sure, but I'm not the one who bro
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See Lenz's take on the paper: http://k.lenz.name/LB/?p=10 [lenz.name] -
And Kinsella'
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But you're right that you really can't draw any ironclad conclusions from this paper. The best summary I'd give would be to say that everyone predicted gloom and doom with software patents, and then it turned out patents likely impacted the software industry the same way they affected every other industry. Which is, on the whole, not that much except to shift some money away from lar
Amazing how money talks (Score:1)
Hard to enforce. Fortunately (Score:4, Interesting)
And that's anything but free market!
Software is provably NOT patentable (Score:2)
http://wiki.ffii.org/IstTamaiEn [ffii.org]
More details
http://threeseas.net/abstraction_physics.html [threeseas.net]
Also see:
http://developers.slashdot.org/article.pl?sid=06/0 9/21/2130243 [slashdot.org]
but the most powerful force of human mentality is "Denial"
A matter of popular or promoted belief often having nothing to do with what honesty actually is.
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Now patent the process and try enforcing your man made and granted rights to cause everyone else to be
Eh,,, (Score:4, Insightful)
It looks like we have won the battle, but the war will continue as long as there is overload of bureacracy in EU and moloch corporations to be lobbying.
Personally, being a Linux user (perhaps not the most advanced around, but at least trying) I shiver at the tought of software patents being introduced and what effect this might have on our distributions. No left-click, no double-click, no <insert_your_favourite_nix_feature_here>?
I do hope this issue will be bounced back again. For the sake of us all.