v1.0 16aug2002: First version
By Matt Webb, with comments, hopefully.
Being: An inarticulate rant trying to place what's wrong with patents, the background that ActiveBuddy have just got a patent on loads of things to do with IM bots that's, frankly, rubbish.
Or:
My mushroom gathering technique is unstoppable.
Okay, so: patents.
Moral issues aside. Free software aside. Information-should-be-free aside. If we're going to have this argument we have to acknowledge that we live in a patent world. With that disclaimer...
It's all well and good to patent a book, or a radically new kind of bucket, or a haircut. Right, and a patent is a form of protection. Ideas, inventions, they're like a good hunting ground. So let's start there. Say I'm a gatherer from a nomadic tribe. Every day I go out and gather mushrooms. I find a great mushroom place and go back there every day. I have an incentive not to share this, because if I do my family won't have as many mushrooms. I'm protected.
There are two things here: the mushrooms and how I get so many mushrooms. The product and the method. The division of the two means I'm automatically protected, it means I own an asset. And because I own this asset, I can sell my mushrooms, the food economy is improved, and so on and so forth.
Skip forward to the radically new kind of bucket which instead of being a piece of knowledge giving rise to a better kind of product is the idea and the thing itself rolled into one. A bucket is a technological solution for the problem of carrying (note it's just a new kind of bucket). The solution is isomorphic with the bucket. But I still want protection for my bucket design, which is where patents come in. Patents establish distance.
Skip forward again, to software. Software takes us back to hunting grounds. There are two things again: source code (great gathering place), application (mushrooms). It's a one way transformation: by eating your mushrooms I can't deduce where you collect one. So patents aren't needed.
The problem is that patents are used to a world where the things-that-is-used, the product in other words, the mushrooms state the technological problem and technological solution all in one. Patents are used in a world where there are no hidden variables. So when you read a patent and it outlines what it does, that's enough, that's the solution already.
Not so with software. If I give you a requirements document, there are an infinite number of possible source codes to solve that problem. And the technological solution is the source code.
ActiveBuddy have patented the wrong thing. They've patented an expression of the problem. The problem is: make a bot that sits on IM that runs on load-balanced servers that works on multiple IM networks that etc.
If that patent was describing a radically new kind of bucket and the problem is was solving, that would be it. With software, there's more.
Let's apply a test. Now I know what problems the ActiveBuddy source-code solves, even if I have the application binaries too, do I have all the same advantages they do?
Well, no. I don't have two years of expertise in my development team. I don't have a system that can change and grow and keep ahead of the competition. I can't even write new and slightly different systems, because I don't have the source code. I can't adapt to extend the presentation layer. I can't improve the natural language parsing. In short, I possess no part whatsoever of the solution itself.
The patent's meaningless. The thing that needs protecting is already as protected as it can be. Legal systems not needed.
So what's happened? Patents have been applied to mushrooms. The patent has been applied to merely expressing the problem. If my mushroom gathering had been patented there wouldn't be protection for my gathering place, but a ban on gathering more mushrooms than me.
Patents don't work for this world. The question of whether they're good or bad just isn't meaningful. The problem is that they're here.