Prof. Martin Campbell-Kelly, author of the invaluable From Airline Reservations to Sonic the Hedghog: A History of the Software Industry (MIT Press, 2003), has co-authored a new paper, An Empirical Study of the Patent Prospect Theory: An Evaluation of Antispam Patents (Spt. 1, 2005). The Abstract:

This paper is an empirical study of Edmund Kitch's patent prospect theory,[*] based on an evaluation of antispam patents. The paper is thus a contribution to the wider debates about the benefits and costs of patents in general, and of software patents in particular. The antispam patent prospect has been selected for the study because this sector of the software industry was formed in the last decade, when software patents were routinely available, and the sector is sufficiently small that all known antispam patents have been individually evaluated and a majority of major players in the industry examined - including open-source firms.

The paper concludes that the antispam patent prospect has facilitated the orderly development of the industry by encouraging diverse antispam solutions, discouraging technology appropriation by reverse engineering, and fostering a market for antispam technologies. It is argued that the patent environment has helped rather than hindered small, innovative, first-mover firms in protecting and marketing their technologies. It is also shown that the propriety and open-source modes of software delivery are not mutually exclusive, that collaboration takes place, and that both can derive benefit from the patent system.

* "Prospect theory" is described as follows in the article:

The concept of a technology prospect was first proposed by Edmund Kitch in 1977.3 At the time that Kitch was writing, the “reward theory” had dominated economic discussions of the patent system for many years. The reward theory posited that a patent served to motivate inventors by rewarding them with a temporary monopoly on an invention. This, inter alia, would enable the inventor to ommercialize the invention without fear of rapid imitation; it would allow the inventor “breathing space” to assemble the resources needed for commercialization; and the tradable instrument of a patent would facilitate negotiations for financial and other resources.

3, Edmund W. Kitch, The Nature and Function of the Patent System, 20(2) J.L. & ECON. 265, 265-290 (1977).