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May 4, 2005
Patents and the Software Industry
A long paper from Professor Ronald J Mann of UT Austin Law School attempts to analyze "the role that patents play in the software industry itself" rather than analyzing software patents per se.
You can read the abstract online; the page provides links to download the full paper (it's a hefty PDF).
Mann's main claim seems to be that patents are actually beneficial to small companies competing against larger firms. He specifically excludes "prerevenue startups" - that is, anyone too poor to afford costly patent lawyers. He also excludes most free & open software organizations and (by implication) many standards bodies, as he is concerned only with entities that attempt to make money from software development and innovation.
Mann also writes against the notion of a "patent thicket" that would intuitively act to slow innovation and constrain development by firms not themselves holding large patent portfolios. Mann argues that the industry's continued high R&D spending is evidence against such a thicket. Although this is a good point (why spend so much if you're afraid you'll get snagged by patents) it has the underlying problem of equating corporate R&D spending with software innovation. Speaking personally as someone who's been inside the software industry for a long time I can assure you there's no correlation whatsoever.
Mann has a lot more to say about IP and the software industry, including up-front attacks on the weakness of copyright (e.g. GPL) in protecting software. The article is dense and worth reading even if you disagree with some of the author's premises. In particular, it is important to consider his conclusions that patents do not have an overall large impact on the industry and that - to the extent that they do have an effect - any effect is a net benefit to small (properly defined) firms, not large.
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