Why don't the anti-patent people use the simpler rule "Software cannot violate a patent".
So if someone makes a physical invention that does something they can patent it but if it's something a general purpose computer can be programmed to do, writing that program does not cause the computer to violate the patent.
> My suggestion is to change the effect of patents. We should legislate that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement.
Thanks, I don't know how I missed that, I blame RMS's hair.
I guess the phrase "Software Patents" and the strange rules about software patentability in Europe gave me the impression that they wanted to take the non-patentable route instead of the non-infringing one.
It seems it is less of a problem to patent something physical (like an engine). In modern times there are few physical things that do not involve some kind of software, so it makes sense (although I'd still prefer not to have this at all) to patent the thing as a whole.
I've missed the party on this discussion, but I'm always fascinated when people make the argument you just made. Why should software be treated differently from hardware? Take the example of an old car engine. The spark plugs are fired by a rotating commutator switch in the distributor cap. The design of the commutator is patentable. But if I was going to implement that system today, I'd simply program a simple microcontroller to fire the spark plugs in sequence. The physical system has been replaced directly by a software system, but one is patentable, and the other isn't?
In short, I would answer your question with a question. Why can hardware violate a patent and software not?
Well obviously software can violate a patent I just think it's bad policy and the law should be changed. I'm not making a philosophical distinction or saying software patents are inherently unjust. Policy by nature makes an arbitrary distinction and says one thing has good effects and the other bad, so what follows is a policy argument as to why the arbitrary legal distinction should be made.
Going from your example, in the absence of cheap programmable computers the problem of coordinating spark timing with the engine is a real engineering problem that probably required nontrivial R&D resources to get right. To the extent that distributors remained useful to the world, those sunk costs should be protected. If you didn't, there'd be a toxic second-mover advantage to just copying the other guy's R&D work.
Software just doesn't have those kind of sunk-cost discovery problem, at least not at anything like the scale other disciplines do. The fixed costs in software are different. They're almost all about execution, education, coordination, and marketing.
Imagine a software R&D guy, who discovers a new thing you can do with software. Assume the idea works, and is profitable: He's still spent a tiny fraction of bringing a product to market, even a product that is just an implementation of his invention. Patents won't fix the second-mover advantage, if any, because the first-mover costs aren't from software research.
The mismatch actually starts to matter when non-practicing inventors come into play. In the old world of industry, these guys were at least providing a public service by creating inventions nobody else bothered to fund, so it was reasonable that companies that found their inventions useful should pay for them. But in software the non-practicing inventor hasn't paid the cost. There is still the first-mover disadvantage out there of building the market, educating your users, etc. on top of the cost of turning the invention into a shipable product that everyone in the market has to pay.
So if someone makes a physical invention that does something they can patent it but if it's something a general purpose computer can be programmed to do, writing that program does not cause the computer to violate the patent.