I have written somewhere a few analogies using paper as an example which I will try to find (or “rediscover”) later if someone doesn’t beat me to it.

For the time being: software is information. It’s the stuff you *put on* paper. It’s the notes on a musical score.

Not the software information, but the computer and screen and printer and mouse and everything else are the materials, yet these are already created and are not modified in any way further when we add software to it than how our own brains are modified when we incorporate into it some information the changes are slight and at the quantum level.

Even if the information storage were not slight, the fact is that the information itself is merely represented in some convenient form. We can change the form and the structure tremendously to make the software “unrecognizable”, yet it would be the same set of instructions. This is because information is an abstraction that can be represented entirely faithfully in entirely different ways (in infinite ways.. including by lining up well-trained ants that know the precise mathematical rules to calculate the computing colony’s next state). The software in different forms would still be related via a mathematical isomorphism.

These materials then (traditional computer hardware of flavor X, trained ants, etc) do the same thing they were always programmed to do, which is to start at the first instruction and interpret it according to existing well-defined rules (eg, one likely instruction would be ADD two small values to produce the third in the location where one of these two values was placed). And then rinse and repeat for the next and future instructions (keeping in mind that there are some instructions which cause jumping around out of sequence based on prior calculated results or results from hardware input like mouse input).

If we have a robot that can cook dishes based on a set of instructions you give it, then we have a computer that calculates (or “cooks”) the new information (by sending results to the screen or printer to display a particular color at a particular location at a particular point in time). Is creating a new complex recipe and passing it around the Internet to friends and having each person feed it to their own cook robot to experience the dish the creation of a new invention? I don’t think so. Not in any sense where patents were created to address. Well, software fed to a programmable device is just this (though likely in any of various different languages).

However, analogy aside (though the analogy is important as a reply to that lobbyist), what might be one of the main reasons to avoid software patents is that they stifle. They grant a monopoly on information ideas. This stifles because software is so light (it’s information: “zero” costs in energy, time, money, etc, to manufacture and distribute) that the monopoly creates a huge opportunity cost because of the many many people that otherwise could recreate that and collaborate with the building blocks. This is the main reason we don’t give patents on literature, law, music, math, and any other form of information creation. It would stifle a huge number of potential participants because it’s so cheap and easy for many innovators and smart people to participate.. if only they would be legally allowed.

As another important point. The inventiveness bar in the US patent system is so low (“non-obvious to a PHOSITA”) that it virtually guarantees that you will be giving a monopoly on what perhaps many tens of thousands (if not millions) of other software developers would not even consider to be “non-obvious” because these people would lie clearly on the right side of the “skills” bell curve. And even if you were average skilled and did consider the invention to be non-obvious and maybe even somewhat difficult or even difficult, that is no reason to give one single person a monopoly on it since many many others like yourself will independently be able to come up with the same non-obvious inventions over at most a few years. So we have a recipe guaranteed to stifle a huge amount if in fact these (US) patents were being enforced as monopolies everywhere possible. They aren’t yet being enforced this harshly, but the law would allow it and this itself has a chilling effect, never mind for the cases of for-profit firms being sued. [And as a tax, they create a huge tax to the flow of information.]

Patents will stifle researchers in other fields (like math, physics, biochemistry, engineering, etc) that rely on a computer as a powerful tool to help them advance the progress of their own intellectual fields.

Finally, it is not theory, but real practice that software works like math and many other disciplines where the community of people collaborate extensively. There have been written likely over 1 billions lines of publicly accessible source code. Great and top quality software is being created this way. In almost all cases of a new “invention” being created among this collaboration, patents are not sought, partly because of the huge overhead this would entail with so much activity going on (and never mind the costs to people who can afford a PC but not 100 patents or more yearly to cover the code they write). Patents are broad and reveal little. Source code reveals all you need and is being “given away” for free my thousands of people daily. Clearly, this stuff does not require a monopoly to attract VC funding or anything like that.

It is a goal of this comment to inspire others to come up with better analogies/arguments or to otherwise reuse whatever they find here useful.