It’s unsurprising that the most aggravating article at Gamasutra was not written by a game designer or publisher or developer but, instead, a lawyer. The lawyer, quite obviously, supports software patents, even ridiculous gameplay related ones. Of course, to have a lawyer support patents is akin to having a prostitute support prostitution.
Software patents are bad. Period. There are many, many reasons but I’m not qualified enough to succinctly express them. Others are far better at that than I am.
The one thing that I do want to comment on, though, is myth number five.
Myth 5. The “spirit of innovation” works best when there is a free market of ideas, and consumers are better off if video games are not patented.
To which he writes a smug:
A classic argument among those who feel that the entire patent system should be abolished. You might want to make that argument to your representative in Congress, because unless the Constitution is amended to do away with patents, they’re here to stay. In drafting the Constitution, our founding fathers recognized that the best way to promote progress in the “useful arts” was to reward inventors who come forward and share their inventions with the public by granting them a limited period of exclusivity in which they can exploit the fruits of their labor. In other words, discouraging slavish copying encourages innovation.
Now, I am not a lawyer (IANAL!), but I doubt that the writers of the Constitution wrote it with the internet, video games, multinational media conglomerates, and the ultra high speed progress of the modern age in mind. Treating it as an absolute, disregarding 250 years of history in the process, seems like a poor defence to me. If the US Constitution can be amended to stop the sale of booze, then it can be amended to fix the broken patent system.
But, really, one does not need to abolish it to fix it. The author of the article talks of history and the founding fathers to push his own agenda, but then fails to mention other historical rulings that would equally apply:
for an idea to be patentable it must have first taken physical form,
the Court has held in the past that an invention must display ‘more ingenuity … than the work of a mechanic skilled in the art’, and
With Congress’ enactment of the Patent Act of 1952, however, Sec. 103 of the Act required that an innovation be of a ‘nonobvious’ nature, that is, it must not be an improvement that would be obvious to a person having ordinary skill in the pertinent art. Explain to me how any of these apply to Scoring based upon goals achieved and subjective elements. The patent office doesn’t need to be abolished; it needs to do what it is supposed to do and not grant frivolous patents that have a million cases of prior art or are completely obvious to anyone that has played any game in the history of ever.
Fucking absolute thinking lawyers. By that absolute reasoning, one would have the right to make and own a nuclear weapon because the right to bear arms doesn’t expressly forbid thermonuclear devices.
(Edit: Slashdot article.)
(Edit 2: Better comments at gbgames, broken down by myth too.)