We've all come across that quote, right?



From the moment that the door was wedged open, the software patent debate was

never going to be resolved purely on the basis of a valid and prevailing

argument against their existence.



There are several reasons for this [in no particular order]



1. The US Domestic Lobby (Monopoly Guarantee)

From the perspective of a non-US Citizen, the impression one gets of US politics

is that the lobby group with the biggest budget tends to get to write the laws

and make the rules. That may be inaccurate and unkind, but in the US, the UK and

many other so-called "democracies", the rules seem to be written

during shady deals, behind closed doors. For software patents, this means that

companies including Oracle, Microsoft, Adobe, IBM, Intel and others are able to

use their combined patent arsenal to prevent new players from muscling on to

their turf. Whatever software patents were intended to provide, they are instead

being used for exclusionary tactics. Unless or until that capability is removed,

software patents are here to stay.



2. The International Effect

The US likes to think of itself as a "world leader". If the US can

convince other countries that software patents are a good thing (just look at

the lobbying happening in Europe at the moment) then automatically all those

thousands of US software patents go global in scope. Domination of the US

software marketplace becomes "Global Domination of Software) and the

software patent system will be used to exclude competition the world over.



3. The (Lack Of) Doomsday Effect

As the report says, software patents have been around since the mid-1990s. The

world as we know it hasn't ended. Yes, large companies have spent more money on

patent lawyers. If they didn't spend it on patent law, they would only have

spent it on something else, anyway. Simply because we haven't had a meltdown,

anyone opposed to software patents is going to face an uphill struggle that gets

harder with ever passing day.



4. The Unprovable Negative Effect

Remember "The Art of 'No' Management"? It's the idea that if a Manager

says "No" to every request received, they can get by just fine. If

they refuse spending on an item and no disaster occurs, then their strategy of

inaction is proven. If they refuse spending and something does go wrong, there

is still no concrete proof that the spending would have solved the problem

anyway. In translation: merely saying "It would be better without software

patents" is an unprovable position and therefore an untenable one.



For the above 4 reasons, we may have to accept that software patents are going

to be around for a while. But that does not mean that it has to be the end of

the world.



Unpalatable though it may be, it's possible that there are analogies between

software patents and nuclear weapons. The Cold War brought us "MAD" -

Mutually Assured Destruction - the idea that if one side (Western Allies or

Soviets) pressed the nuclear button, the result would be the end of life on

earth. Because of that no-win position, nobody pushed the nuclear button (at

least, not yet). The software patent argument is more subtle than this, because

it *is* possible for a company with a large software portfolio to attack a

smaller rival with relative impunity.





I see one potential scenario in which the strangle-hold of software patents may

be broken, but it's unlikely and may be unpalatable to many.



It would occur if a major country - like China or India, for example - realised

that it could have a flourishing and productive software industry and that the

only thing holding it back was the US dominance of software patents.



If that nation - or a group of nations - were able to go before the WTO - World

Trade Organisation - and say, "Look, if the US wants to play silly with

software patents on US soil, that's their call, but we won't have this imposed

internationally..." then by insisting on sticking with software patents,

the US would potentially place herself at a disadvantage when trading with other

countries. Those nations not so encumbered would encourage innovation in

software, until such time as the local product out-performed US technology. That

would create the tipping point that would result in the collapse of the US

software industry...



Unfortunately, that scenario is extremely unlikely to ever happen (I fear that

US dominance of international institutions including the WTO and World Bank is

too strong).



But without it, the free software world faces a considerable and rising

challenge. There is likely one more thing that software patents have in common

with nuclear weapons. Just as the "fuel" or "munition" in

nuclear weapons is an incredibly toxic and lethal poison that cannot be safely

dismantled, with an effective lifespan of tens of thousands of years, so the

likely fallout from a few years of software patents could easily have

far-reaching effects, particularly in areas we may not easily foresee.





Here's a completely different example of monopolistic effect... In the UK, £4

out of every £7 spent on the "high street" goes to a retail company

called Tesco. They own and operate supermarkets and other stores. Over the last

20 years, the dominance of supermarkets has contributed to other changes in

society, including...



1. High Streets have imploded. Independent retailers and smaller stores have

been wiped out. Choice has been removed and prices have risen drastically as a

result of the elimination of competition on the high street.



2. Other markets have been impacted. At first it was just food and groceries.

Then the supermarkets built gas stations on their land - to the extent that now

90% of fuel in the UK is sold by just a tiny handful of vendors. Another

no-choice, closed-rank cartel.



3. Suppliers have been squeezed or eliminated. Farms, for example, have been

wiped out by supermarkets. Farmers are forced to accept whatever prices the big

supermarket chains want to pay, trade at a loss and go bust. The supermarkets

buy the farms and install cheap imported labour - and own the entire supply

chain. They also have the political clout to influence planning decisions and

get permission to build on land that original, private farm holders could not

have achieved.





In short, in the last 15 years, although you can still buy food in the UK,

choice has been seriously eroded, quality is no better, and a very small number

of organisations are making huge, huge profits. But the really scary thing is

the immense control and influence that *food retailers* can have on the

distribution industry, the petroleum market, the clothing market, electronics

and "white goods", farming, etc, etc, etc. Dominance in one market

sector was leveraged and monopolized to the detriment of other things.



Likely that software is going to go the same way, with that process seriously

accelerated as a result of software patents.



[ Reply to This | # ]

