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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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May 4, 2005

Patents and the Software Industry

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Posted by Alan Wexelblat

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.

Comments (4) + TrackBacks (0) | Category: IP Markets and Monopolies


1. Jonas Maebe on May 4, 2005 6:15 PM writes...

This paper was posted already quite a while ago, though the title was changed recently (the original one was "The Myth of the Software Patent Thicket").

You can find some criticism on it by Professor Karl-Friedrich Lenz and in a recent paper (search for "Mann") published at the European Policy on Intellectual Property Conference by Alessandra Rossi, an economist/law scholar.

Permalink to Comment

2. three blind mice on May 5, 2005 5:08 AM writes...

Professor Mann is an economic realist, Dr. Lenz is a not.

Lenz: Mann then proceeds to explain that infringing software patents is no big deal because IBM is very unlikely to actually sue infringers (Page 53).

Again, this is only a denial of reality.

dr. lenz is the one in denial.

software patents have been issued in the US since 1981. IBM, and many other giant companies, own thousands of software patents. IBM recently offered a pledge not to assert 500 of their US patents against Open Source developers. several of these patents have been infringed for number of years.

where, pray tell, dear professor are the lawsuits? can you name even one example where IBM has instigated patent infringement litigation over a software patent against a smaller rival?

the fact is that GNU/Linux and the entire Open Source movement was born, raised and matured in an environment where software patents exist and are enforceable.

two decades of economic history illustrate in abudance (GNU/Linux, Apache, Firefox, etc. etc. etc.) that the sky is not falling.

facts didn't stop chicken little, but he was a chicken. a professor of law, like dr. lenz, has no excuse.

Permalink to Comment

3. Alexander Wehr on May 5, 2005 12:31 PM writes...

"the fact is that GNU/Linux and the entire Open Source movement was born, raised and matured in an environment where software patents exist and are enforceable.

two decades of economic history illustrate in abudance (GNU/Linux, Apache, Firefox, etc. etc. etc.) that the sky is not falling."

virtually ALL open source media players are not developed in the USA because software patents prevent it. Mplayer, Xine, and VLC are under dire threat from the prospect of software patents as nearly all open source codecs are in fact infringing on some patent or other. VLC was bullied into removing dts decoders because they were threatened with a patent infringement suit, and thanks to software patents there are no open source decoders for real media.

I dread the day when I won't have VLC and Mplayer to fill the gaps in compatibility between mac and windows.

This guy is an absolute moron.

Permalink to Comment

4. Branko Collin on May 6, 2005 7:38 PM writes...

"This guy is an absolute moron."

TBM is a well-known troll from the Lessig blog. You will note that he hasn't said anything substantial in his comment; I doubt he has even read prof. Mann's paper.

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