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Why patents are bad for software

9 February 2006 by Ch. Tronche | Filed under Software patents.

Software patents certainly incur important costs:

  • to get them (cost quite marginal here, if you look at the other costs)
  • to defend them in court
  • you must get an insurance to ensure your company won’t be disrupted by a patent. Actually, this cost is so high in the US (where software patents are routinely granted), that nobody accepts to insure that risk any more, putting the whole economy (producers of software, but also users of software, that is, almost anyone) at risk in a kind of “software patent risk bubble”.
  • they make the software much more costly (see here why).

They’re other cons also:

  • patents are supposed to be a tool to boost innovation. However, the “free / open source” software (which developed outside the patent system) is undisputably the most innovative and dynamic segment of the software industry. Certainly, lack of patents there doesn’t translate into a lack of creativity. Any study in the patent domain that doesn’t take this into account cannot pretend to be serious.
  • Patents are supposed to protect an invention during the “development” phase, that is when going from prototype to mass-production. However, this time is essentially zero-time, zero-cost in the software world: the means to mass-copy the software and distribute it (via internet) not only pre-exist the software, but also have a cost of essentially zero. Contrast this to, say, a drug, where the way from the lab to the mass production can be a research project in itself.

The software patents thus, create no incentive for innovation, is almost useless, and really stifle it by increasing the cost of software, the breath and blood of the 21st century information economy.

Why should we tolerate it then ? Don’t we want innovation and growth ?


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