In response to an open letter to OASIS about its proposed patent policy
http://www.groklaw.net/article.php?story=20050222131432302
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Dear OASIS,

Please heed the advice of the Open Source advocates who are encouraging
you to take a stronger stand against patents affecting your standards.

The privileges a patent bestows on its holder provide an incentive to
apply for patents.  In so far as such application will fail unless it
exhibits some substantive research and constructive innovation, the
patent system can thereby stimulate research and innovation.  The record
of recent years shows beyond doubt that the patent system is incapable
of making these welcome fruits a prerequisite of granting patents in the
software field: those of us whose livelihood is the software industry
have no confidence in the patent system's ability to ensure its offered
incentive will actually produce the benefits it is supposed to bring.
Patents are applied for, to be sure; but, since they are granted even
when meritless, the incentive is only to apply for them; there is no
incentive to do the constructive and valueable things patents are
supposed to encourage.

In any case, those same privileges bestow monopoly control; and this
inescapably hampers incremental innovation, based on the patented
innovation, and is likely to hamper any innovation that would have
happened without the added incentive the patent system is supposed to
provide.  Equally, if several parties come up with substantially similar
innovations, a patent system necessarily deprives all but one of the
natural fruits of their innovation, in order to grant that one
privileges designed to augment those natural benefits.  Such injustice
is an inescapable consequence of a patent system.

In an industry languishing for want of innovation, these failings will
seldom materialize; the harm they do can plausibly be off-set by the
benefits a patent system is designed to offer.  However, the software
industry thrives in much of the world without a patent system; and
thrived likewise before patents came to be applied to it, where they now
are.  There was, and is, ample innovation (indeed, some customers may
complain there is too much) without help from patents - what need have
we, then, of any further incentive to innovate ?  In such a rapidly
innovating industry, the above failings are sure to surface: the harm
these cause can readilly swamp the intended benefits of the patent
system *even* if these last are realized.

Furthermore, in any such rapidly innovating industry, the process of
patent examination cannot reasonably be expected to keep up with the
current state of the art, making it impossible to implement a standard
of novelty - in the patent examining process - that can command the
confidence and respect of the practitioners of the art affected by the
patents granted.  To at least this degree, the above-mentioned failure
of the patent system to require genuine merit is an inescapable feature
of the industry, not an accidental failing of the patent system which we
can hope to see government mend.

As an industry perfectly matching this worst-case scenario for a patent
system - where the intended benefits of the system are annulled and the
perils to which it is prone are inescapably realized - the software
industry needs to persuade government to free us of the impediments and
injustices patents impose.  However, in so far as any governments do
grant patents on software, this creates an incentive for players in this
industry to exploit the above deficiencies of the system to their own
short-term advantage.  This can only harm the goal of interoperability,
which it is OASIS' business to promote.

Players in the industry who have invested heavily in such a strategy
will not help us to persuade governments to correct the flaws in the
patent system which allow it to back-fire.  Therefore we look to those
industry players with no cause to turn against our common good - most
notably the standard-setting bodies, for whom the goal of
interoperability is paramount - to send out a clear message that they
see the evils patents may cause and will use their natural authority to
oppose such harm, both directly and by speaking plainly to government
about the need for reform.

The clearest and most direct way that a standard-setting body can stand
firm against the folly of patents affecting our industry is to address
the harm patents are apt to do to their standards - by requiring that
their members, at least, co-operate to keep at least their patents from
hampering general implementation of those standards.  The W3C have
gained our respect by developing a patent policy which serves that end
faithfully: I call on you, OASIS, to follow that welcome lead and,
likewise, earn the respect of those of us who actually create software
by doing your part to defend us against those who would fence in the
world of ideas and stiffle our efforts to better serve our customers,

	Edward Welbourne.