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Reforming Software Patents with 'Marking'
Posted by
timothy
on Wed Apr 20, 2005 12:41 PM
from the no-trespassing-vs.-invisible-fence dept.
from the no-trespassing-vs.-invisible-fence dept.
sakul writes "Came across an
article in the Stanford Law Journal that proposes
'marking' patented software to make the patents obvious to the public and to force large companies patenting software "to play by the same rules as holders of other kinds of patents." Interesting but technical read. Could this be a solution to some of the ever growing problems with software patents?" (Stephen Lindholm, the author of the paper, has provided a link to the paper itself, as well.) On the same topic, karvind writes "Gavin Hill, a film graduate, has produced and directed an interesting animated film on How Software Patents Actually Work. It's explaining the dangers of software patents and how they affect you and your business."
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The Conclusion (Score:5, Insightful)
One might object to the arguments presented in the second section of this paper as empirically unsupported--after all, the plural of "anecdote" is not "data." The rejoinder is that a half-billion dollar verdict is more than a mere anecdote,204 and the plural of these "anecdotes" is a shameful abomination. The burden is on the proponents of the current software-patenting regime to point out where the billions of economic gains can be found.
Re:The Conclusion (Score:3, Informative)
The author does an excellent job shedding light on the difficulty of "process" and software patents, but his solution leaves much to be desired.
Re:The Conclusion (Score:3, Insightful)
Compuserve was dying as an ISP and was trying to prop itself up. Nobody
Re:The Conclusion (Score:3, Insightful)
Can you think of a company that would try such an underhanded tactic as dropping out of the software market only to then sue those who lead that market...?
This has worked for thousands of years (Score:5, Funny)
I figure if dogs can use this method to demarcate their territory, why can't people? So now the question is, will Bill Gates mark each package himself, or will Balmer get to do it too? It seems like this job would be way more than any single person can handle.
Re:This has worked for thousands of years (Score:2)
Better switch to 3.2 beer.
Re:This has worked for thousands of years (Score:2)
Soko
Here's an idea (Score:5, Interesting)
Kind of like 'burn everything down' idea from Vietnam.
If the system is bad and allows abuse then this one way to kickstart something new.
Re:Here's an idea (Score:3, Informative)
Re:Here's an idea (Score:2)
good animation. (Score:3, Informative)
so solution at all (Score:5, Insightful)
The other problem are patents that lock proprietary file formats and communication protocols; marking these software products doesn't help to make software interoperable, the opposite is true.
Re:so solution at all (Score:3, Funny)
I often sit around drinking bottles of water while working on my submarine and think quietly to myself: "I wonder what patents would I be infringing upon if I made this a consumer product? This submarine patent problem is the greatest problem in the world today."
Re:so solution at all (Score:3, Insightful)
I think the problem is that companies don't have any incentive to support software interoperability. In fact, they perceive disincentive as interoperability appears to have the potential to lower their software sales. We could mess with the free-market system however and legislate interoperability. Theoretically,
Why mark more? (Score:2, Interesting)
patent != copyright != license (Score:3, Informative)
Comments in the source about patent use just don't work, especially for products where you don't have the source.
I read this as being along the lines of "products should document clearly ( in manuals, marketing material, etc ) what patents they are protected by", just like say, your car, TV, VCR, DVD player, even lawn mower : pick up a manual to any of them, you'll see patents ( both pending and otherwise ) listed fairly prominently. I
I disagree (sorta) (Score:4, Insightful)
This paper starts from the proposition that software patents are, practically speaking, hidden away in the recesses of the patent office and practically impossible to find. It proceeds under the first economic principles of the patent system to argue that there can be no justification for patenting software when the public has no knowledge of the patents' scope or technical disclosure. It concludes by observing that patent law already provides a mechanism for disclosing patents to the public, the marking requirement, and proposes putting teeth into it so that holders of software patents would be required to play by the same rules as holders of other kinds of patents.
I think that the problem many have with software patents is not that they are hard to find, but rather that it is so easy to patent almost anything, regardless of how trivial/obvious and many times without regard to prior art. Marking may help you from getting tripped up by an existing patent, but if the basic premise is that the majority of software patents are evil, then marking just makes the evil easier to find.
Interesting Enough (Score:4, Interesting)
Obligatory.... (Score:5, Funny)
"This paper starts from the proposition that software patents are, practically speaking, hidden away in the recesses of the patent office and practically impossible to find.
I don't see the problem. They're clearly marked in the basement, right by the sign that says "Beware of the Leopard."
Re:Obligatory.... (Score:3, Funny)
Acrobat (Score:2, Insightful)
Only one thing will solve the patent dilema... (Score:5, Insightful)
Re:Only one thing will solve the patent dilema... (Score:4, Insightful)
I think most of our issues would be solved with patent reform and a wide-scale review. The people granting the patents just need to be better at discerning what is patentable and what is not, or perhaps the court system/legislature should make it more obvious to them.
Parent
Re:Only one thing will solve the patent dilema... (Score:4, Insightful)
When you say "Xerox PARC" as an example of an R&D place. Uhh, they built a machine with a mouse. They built an Ethernet card. They had working networking. They are an example of everything that is right about R&D. They did good stuff. It's really too bad Xerox didn't think outside of the realm of copiers. They pretty much owned the computer market 5-10 years before it existed.
I think the parent to your post had it conceptually wrong in terms of "product". I think he should modify that to be "once they have a working proof of concept", they should be allowed to patent it to protect themselves while they turn the concept into a product (I think this is the one legitimate use of patents, to protect smaller companies from larger ones while they are turning their concept into a product).
The problem with software patents are that some of them are just stupid. Anything that is "I'm automating something done by hand with a computer", shouldn't be patentable. It is no longer "novel" to automate any kind of process thru software. So everyone who patents essentially a business model thru software (my software does X, and I re-sell X as a service so I'm given a government granted monopoly on the concept of automating service X). I know there were a couple of guys who did this for automating importing and exporting. It automatically filled in some gov't forms. Got a patent, essentially tried to run every one of his competitors out of business because they used computers for some form of automation.
The other problem with software patents, is that 17 years (or 20 years from application date), is just assinely long in terms of computers. Just think if someone had patented the "mouse" when the Mac came out. That would mean you'd have had bought their mouse up until Jan of 2001 (using the 17 years from application rule).
Conceptually no one will get to implement "one click" purchasing until what, 2017 (I think they applied for the patent in 1997)? Geez, that sounds like a fair amount of time. Lets see, how much has the computing world advanced since 1997? How much since 1987?
Just think if HTML, or a Web Browser were patented so that we would have to nicely ask permission to use such concepts? It'd badly stifle innovation. If they we're talking about letting you have a patent that could protect you for up 20 years, but you only got a gov't granted monopoly once you've productized it for say 2-4 years. I'd say that's a bit more sane the then current system. It could probably still be "gamed" to gain an unfair advantage, but it sure would be nice to see fast moving markets be relatively patent free.
Kirby
Parent
How on earth do patents work at all? (Score:4, Insightful)
How many patents did you violate in order to write it?
How do you know?
How can ANYONE possibly EVER know?
And even if by some miracle you did know today, how will you know tomorrow, when another 1,000 patents have been granted?
You have no answer to these questions. I know that in advance, because these questions are impossible to answer.
It amazes me that anyone is still confused about this.
Software patents are a ridiculous, unworkable farce. The only reason they "work" today is that they are almost universally ignored, even (or especially) by their supposed proponents.
Parent
Adobe Patents listed in about box. (Score:2, Informative)
Protected by U.S. Patents 4,667,247; 4,837,613; 5,050,103; 5,185,818; 5,200,740; 5,233,336; 5,237,313; 5,255,357; 5,546,528; 5,625,711; 5,634,064; 5,729,637; 5,737,599; 5,754,873; 5,781,785; 5,819,301; 5,832,530; 5,832,531; 5,835,634; 5,860,074; 5,929,866; 5,930,813; 5,943,063; 5,995,086; 5,999,649; 6,028,583; 6,049,339; 6,073,148; 6,185,684; 6,205,549; 6,275,587; 6,289,364; 6,324,555; 6,385,350; 6,408,092; 6,411,730; 6,
Re:Adobe Patents listed in about box. (Score:4, Insightful)
Parent
Re:Adobe Patents listed in about box. (Score:5, Funny)
and finally
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MS Office (Score:2)
Is this really a solution? (Score:2)
In fact, until the flawed underlying process of patenting software is fixed in a more permanent way this could actually make things worse. Right now it is very easy for programmers to simply ignore patents that they find ridiculous on the basis that the owner wou
Feeble, absurd compromise that makes no sense (Score:5, Insightful)
That is to abolish them.
Software patents have never worked, and can never work. There is no way they can be made to work.
Marks do nothing to solve the absurd problem of scale. No one can ever assimilate the patent database, or even keep up with new additions, no matter what reforms were enacted. Anyone who tells you their code is "legal" with respect to patents is a bold-faced liar. Every line of code is a ticking patent timebomb.
The very term is just a code word for "Barratry."
They are a legal anomaly and a practical absurdity. They "function" only in that they are almost entirely ignored by those they are intended to govern. In short, they are a very expensive, very destructive farce.
In theory they were meant to be a tool for rich people to shake down poor people, but they even backfire at that, since small "IP" companies can shake down giants with impugnity without being counterattacked, as long as they have no products of their own.
This does not solve the major problem (Score:2, Insightful)
The major one is not seeing a good feature in a product and violate a patent in trying to reproduce it. The big problem is trying to implement some [often trivial] feature and accidentally break a patent in a software which we don't even know exists!
For example if I had an ecommerce site, I would probably have implemented a one-click buy option even if I haven't seen amazon before.
Re:This does not solve the major problem (Score:2)
And if we put a sign on every car that says,
"This is a car.", I'm sure car accidents will go way down too.
You're not solving a problem, you're just hastening the inevitable collapse of the software industry that software patents, as they exist today will cause.
Sure... I can just see it now... (Score:3, Insightful)
Looking at my menubar and instead of seeing
File/Edit/View/Go/Bookmarks/Tools/Help
I see
Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only File/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Edit/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only View/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Go/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Bookmarks/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Tools/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Help
Lets really bloat our systems...
Re:Help...About... (Score:2)
100-year patent issue (Score:3, Insightful)
I never see much mention of the fact that a software patent extends for 17 years makes it equivalent to 100 years in another industry. I think this will become more of a problem as other industries accelerate in production.
Think about the state of computers 17 years ago (1988), who's patents are only now expiring. We're talking pre-Internet.
In general, patents are supposed to encourage innovation. But that was never needed in the software industry. Patents are now used as corporate weapons and nothing more.
The big guys have thousands of patents in their arsenal and you're likely infringing on one of them unless you can PROVE you're not. the result -- the little guys (the innovators) are the losers and ultimately, the entire industry becomes the loser as innovation slows down.
Problems with software patents (Score:2)
I came up with a neat idea the other day for a bit of software, and then I thought how on Earth
Quick (Score:3, Insightful)
Don't laugh - you know MS saw this article and has somebody working on a proprietary format for storing this information.
Is "patent" pronounced differently in England? (Score:2)
Re:Is "patent" pronounced differently in England? (Score:2)
Hybridize to unmark (Score:3, Interesting)
An analogy with the real world:
The result: the "aeroplane," a new patentable invention that the glider builders, bicyclists, automobile companies, ship builders and birds cannot charge you royalties for.
OK, so do the same with software:
Whatever procedure they use to "mark" the code can be used to unmark it, because it's all just modifiable information.
A sufficiently hybridized program will succeed in defeating any scheme for marking it, and if they attempt to do this through almost impenetrable obfuscation then no one will want to use their hopelessly unmaintainable code anyway.
Hmmm... maybe this explains something about the apparent insecurability of some M$ code?
Section 4, Solution to Arrows Information Paradox (Score:3, Insightful)
He could implement it and show its advantages and sell it on its advantages.
Recall Fox softwares 'Rushmore' database technology. They showed the benefit without revealing the technique.
Of course he, the inventor, must be able to implement it, or how else could anyone else?! Also he must be able to show advantages or it has no worth.
Marking patents? (Score:3, Funny)
I'm sure this will really mess up nanotech patents and business method patents.
I think we should chemically etch the appropriate patent numbers into the legal staff first.
Anything that makes software patents harder to use (Score:3, Interesting)
Currently when the big guys cross-license their patent libraries, usually no money changes hands and they don't change how they do business - it's a CYA formality used to make life difficult for businesses without big libraries. If marking were required, licensees would either have to:
read the libraries and pick the patents that they actually used
mark every product with "May contain technology based on ... 10,000 patent numbers"
risk invalidating patents licensed to them, and getting sued into oblivion by the owners
Keeping a licensed patent in force would cost something if marking were required. Keeping a lot of patents in force would cost a lot. What's not to like?
The paper's author doesn't get it (Score:3, Interesting)
The problem is much closer to a chemical plant and its products. Sure, there may be a single patent on a product like a drain cleaner, but there can be hundreds of patents on the machines used to produce this chemical product.
Most software patents that are really troublesome are not the products on the products themselves but patents on tools and techniques used to make the products. These are hidden away and no amount of "marking" is going have any benefit whatsoever on this sort of usage.
Yes, I am listed as the inventor on at least two software patents. I think they are all silly, but today that is the price one has to pay - cross-licensing. You violate someone's patent and the defense is they are violating your's. So you cross-license and everyone is happy again. It is closely tied in with both the VC and legal communities, and until they go away software patents aren't likely to either.
IBM Progress bar patent (Score:4, Interesting)
The paper mentionsthe IBM progress bar patent from 1990: Patent on progress bar [rolandstigge.de]
Here's a screen shot from the Apple2GS (Actually its running on a GUS emulator becauses it way too old). AppleIIgs screen shot [apple2history.org]
Notice the progress bar it displayed as it was starting up. Thats from 1983?
That's a European patent.
People are not businesses (Score:4, Insightful)
Historically large businesses produce goods which ordinary people then consumed.
Now ordinary people are starting to produce goods for orther ordinary people (blogs/podcasts/software/web services/etc...). Thanks to modern technological advances you no longer need huge investments of capital to create, market, and sell things. I can market and sell all by myself thanks to the web. If my product is information-related odds are I can create it cheaply either by myself or with a small group as well.
So while laws regarding copyright, patents, and trademarks work well for businesses that have access to large amounts of capital (what is 50k for filing a patent when it costs us millions to create/market our product) they work against the individual or less capital-intensive businesses.
While personally I think all IP related laws need to be abolished (with the possible exception of trademark but even there I'm not 100% convinced) they definitely need to be made easier to deal with for smaller business entities that don't have ready access to lots of capital(aka money).
Re:SP (Score:2)
http://www.eweek.com/article2/0,1759,1788062,00.a
Re:SP (Score:3, Interesting)
because it does nothing to stop the patent play companies who never make a product to be marked.
It does nothing to help disclose prior art outside of patented products, since only patented things need to be marked.
It does nothing for tarball products. Imagine receiving a Windows XP with a readme listing 70000 patent numbers.
There is no real penalty for overspecifying, its just bytes in a file. So companies will simply claim their software utilises all their patents. Without the code who can prov
Re:USTPO (Score:4, Funny)
It's tricky, from what I've heard. You need to demonstrate basic competence at oxidative phosphorylation.
Parent