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The Death of Nearly All Software Patents?
Posted by
kdawson
on Thu Jul 24, 2008 10:25 AM
from the we-can-only-hope dept.
from the we-can-only-hope dept.
An anonymous reader writes "The Patent and Trademark Office has now made clear that its newly developed position on patentable subject matter will invalidate many and perhaps most software patents, including pioneering patent claims to such innovators as Google, Inc. In a series of cases including In re Nuijten, In re Comiskey and In re Bilski, the Patent and Trademark Office has argued in favor of imposing new restrictions on the scope of patentable subject matter set forth by Congress in article 101 of the Patent Act. In the most recent of these three — the currently pending en banc Bilski appeal — the Office takes the position that process inventions generally are unpatentable unless they 'result in a physical transformation of an article' or are 'tied to a particular machine.'"
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Submission: The Death of Nearly All Software Patents? by Anonymous Coward
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This violates my patent (Score:5, Funny)
Re:This violates my patent (Score:5, Funny)
I patented the use of curse words for humor value in Slashdot comments years ago. If I ever decide to enforce that patent, all of you fuckers are doomed.
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Re:This violates my patent (Score:5, Insightful)
Well then we're safe then, since we're not funny.
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Re:This violates my patent (Score:5, Funny)
You just violated my patents on patent-ing invalidation of....
...whatever it is the poem was about!
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Re:This violates my patent (Score:5, Funny)
Well you're all in deep shit, I patented "beating a dead horse through overuse of a tired old joke" way back in 1996, so you'd better get wise
This is the first post I'm making informing you of your new, patent-holding, overlord. I suggest you welcome him, you insensitive Clod!
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Re:This violates my patent (Score:5, Funny)
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Re:This violates my patent (Score:5, Funny)
I patent thinking..and I still can't find anyone infringing.
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Tied to a machine? (Score:5, Funny)
Sounds like the machine that these patents are going to be tied to is the Titanic.
Patent Pending (Score:5, Funny)
Good (Score:5, Insightful)
Thus is a good thing. Patenting software is like patenting a math equation. I can understand software copyrights but not a freaking patent. I wonder how this will affect the cases that where already in court.
Now if we can only get some sense in patents regarding biology. By the way my patent on the biological reproductive process in humans will go into affect today. So all you with kids prepare to cough up.
Re:Good (Score:5, Insightful)
Patenting software is like patenting a math equation.
It's not even "like", it is patenting math. Software is math. Someone might say that everything can be reduced to math, but the fact is that a ball tossed in the air may follow a parabola, but the ball isn't math, it is just described by math. Whereas software is math, as surely as "y = ax^2 + bx + c" is math. One is a human-readable representation of a pure mathematical concept, and software is a machine-readable representation of a pure mathematical concept. You can't patent the human-readable form of math, you should not be able to patent the machine-readable form of the exact same math.
You can patent the machine that is capable of reading and acting on the mathematical operations described by the software. But not the software itself, because that is, literally, no metaphor at all, patenting math.
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Re:Good (Score:5, Informative)
You are completly right, there is even a mathematical foundation for this, it's called the Curry-Howard correspondence : http://en.wikipedia.org/wiki/Curry_Howard [wikipedia.org]; which says : "The Curry-Howard correspondence is the direct relationship between computer programs and mathematical proofs. Also known as Curry-Howard isomorphism, proofs-as-programs correspondence and formulae-as-types correspondence, it refers to the generalization of a syntactic analogy between systems of formal logic and computational calculi that was first discovered by the American mathematician Haskell Curry and logician William Alvin Howard."
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Re:Good (Score:5, Interesting)
I even wonder if the Curry-Howard correspondence can't be used in court to invalidate "ALL" software patents as this a theoretical which equats any progam and (algorithm) to a mathematical formula. I wonder if this has been already tried in court !!
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But don't forget Turing.. (Score:5, Insightful)
So computer programs are both equivalent to a physical machine, and an abstract mathematical proof, at the same time.
That is, you can argue it either way, and they're both right.
That said, I maintain that you should have to acutally build the Turing machine to get the patent :-)
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Re:Good (Score:5, Insightful)
By that same logic, doesn't that void patenting genes as well, as Genes are natures version of software?
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Re:Good (Score:5, Interesting)
Traditionally, you cannot patent discoveries. Discoveries aren't something new or novel that you created. You just found something that already existed. For instance, if you discoverd Klausonium - a new element awesome for everything from T-Shirts to nuclear weapons - you couldn't patent it because its existence isn't owed to you; it existed before you found and it would continue to exist whether you tell people about it or not.
Likewise, gene sequences shouldn't be patentable because they are discoveries. The European Patent Convention expressly forbids patents on discoveries. US patent law is slightly more vague allowing patents on "new. . .compositions of matter". One could argue that a gene sequence is a composition of matter, but it certainly is not new.
Well, I'm done thinking. Good luck with Klausonium. Hope you can be first to market :-).
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Re:Good (Score:5, Insightful)
Your not patenting the patent; you are patenting the physical machine. Of course a patent is not patentable, just like software should not be patentable.
GP was NOT making an analogy, GP was making the assertion that software IS ACTUALLY, FOR ALL INTENTS AND PURPOSES math.
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Re:Good (Score:5, Insightful)
Hans,
At the level at which you (possibly as a software engineer) deal with it, the mathematics behind the software is normally so abstracted as to be almost invisible.
That does not change the fact that at the most basic level all computer programs are just mathematics - a Turing machine manipulating program and data.
And mathematics isn't a science at all - it is a logical discipline, where (all useful) theorems are either true or not true, unlike science where hypotheses are there to be shot down, but so long as they work better than existing hypotheses they are held to be contingently true.
Fact is, it is possible to prove the correctness or otherwise of a computer program, so it's mathematics.
Bri.
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Re:Good (Score:5, Informative)
I used to agree with what you're saying, but that was before I realized a few things:
1. Computer Science != Programming
Computer science is more about research, not about writing accounting and billing programs. The mistake colleges make is not mixing computer science with math, it's making the assumption that all programmers must be computer scientists.
2. You can only get away with being a programmer while sucking at math because of the many layers of abstractions that have been built on top of the math. The math is still at the bottom, but we now have higher-level, more right-brained ways of expressing that math.
An example might be SQL and relational databases. SQL is a very English-like language that is interpreted into relational algebra by the database engine. You don't really need to thoroughly understand all of the relational algebra to write basic SQL, but there it is nevertheless.
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Re:Good (Score:5, Informative)
During my phd I created a dynamically resizing matrix like structure for representing gene networks of arbitrary size.
Shortly after this I found that something effectively identical had been granted a patent in the US.
The patent didn't effect me at all, so I wasn't concerned on that front. What shocked me was that a patent had been granted for it at all.
The design was useful for me, because it reduced memory usage by around 96%, but in no way was it something that should have been granted a patent.
I imagine that patent will cause some researchers problems unless reforms prevent its usage. I've not heard of it being used offensively yet, I assume the holder will be waiting for a chance to get some serious settlement cash.
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Re:Good (Score:5, Insightful)
From my experience with watching how the companies I work for treat patents, they aren't used offensively. They are used to:
A) Show proof of innovation to venture capitalists, stock holders and management
B) Ensure they will have the right to use that process, so some other guy won't use a patent offensively against them.
I would say the patent you're discussing falls under A.
However, that certainly doesn't stop a patent troll from buying the company who has the patent and then using it offensively.
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Re:Good (Score:5, Insightful)
I've frequently wished that the very fact that a patent troll can sue twenty other people for violating their patent was considered ipso facto proof that the patent couldn't have been all that innovative, by the very fact that several other people coming up with the same solution ought to be the very definition of "obvious to someone skilled in the arts".
Certainly when we're talking about students coming up with "patented material" that should be strong evidence that it's not that hard.
(This is a summary of the argument, there are details and nuances, etc. But I think the root idea is sound.)
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Re:Good (Score:5, Funny)
The patent didn't effect me at all...
Another universe-destroying causality violation narrowly avoided...
Whew!
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Not good (Score:5, Insightful)
I don't agree. Once again, patent policy is being set by people who obviously don't understand the technology, and so, having lurched from one extreme to the other back in the 1980s, we're now going to lurch to a new extreme that is also not going to make sense. If you read TFA closely to the end, you'll see that somehow two connected computers constitutes a "particular machine", where one does not. This doesn't make any sense, and is going to result in an arbitrary selection of which patents are valid and which aren't.
I understand that many people feel that software patents are so broken they should be thrown out. I don't agree. I think the problem with software patents is that the PTO never has had adequate expertise concerning prior art in the industry, and largely as a consequence, the bar for obviousness has been set about two orders of magnitude too low.
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Re:Not good (Score:5, Insightful)
Bear in mind obsolescence and market saturation times as well.
Patents were developed with a long time to market and market saturation time (i.e. several years to ramp up production, then about 10-15 years to get a market using this as almost a standard), which ate up about half of the patent time. So you had about the same time again to enjoy the benefits of a stable market before the floodgates were opened, and everyone could make it.
In the software world, a technique can have the development time of hours. Market saturation can happen in weeks/months.
If software were to be patentable in its current form, I'd say 5 years would be a good ballpark figure. Like all things, this would have to be hashed out sensibly, so it'll likely never be implemented in a workable form.
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Re:Not good (Score:5, Insightful)
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Which part don't you agree with? (Score:5, Insightful)
Do you not agree that software is equivalent to mathematical formulas, or do you think that software patents (an arbitrary subset of mathematics) should be patentable for some reason?
In the latter case, do you believe that, say, Andrew Wiles proof of Fermat's last theorem could be translated to a typed lisp expression (or any equivalent in some other language) and patented as a method of proving a certain fact about integers, and then authors of any proofs using Fermat's last theorem as a lemma could be sued for violating the patent? What about the four-coloring theorem which requires a programmatic proof? In short, what criteria would you use to distinguish unpatentable mathematics from patentable software?
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I'll believe it when it happens, not before... (Score:5, Insightful)
I don't care who's reporting it or how reliable the source, the news that software patents would be invalidated, at least to me, and I'm sure a great many others, is something that is far in excess of too good to be true, so I'm gonna wait and see what happens.
I really wish I could believe that this were possible, but I think too many people with very deep pocket and friends in the right places would get screwed over by this sort of thing to ever allow it to happen.
Re:I'll believe it when it happens, not before... (Score:5, Insightful)
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Re:I'll believe it when it happens, not before... (Score:5, Insightful)
There is also a large amount of money in the software markets held by people who compete with patent trolls. RIM, Barnes and Noble's web design team or anyone who knows how to put payment information in a database, Novell, IBM, and a great many other companies will be glad when obvious, common-sense methods are not being used to fish for huge settlements.
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Re:I'll believe it when it happens, not before... (Score:5, Insightful)
Precisely. Patent abuse is both a cause and effect of corporate power. Money speaks, and I think I can hear it clearing its throat even now.
Somebody post on this after it's happened, and a long list of major technology corporations has not only acknowledged it, but acted on it. Until then, I'm not getting my hopes up.
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I was going to tag this... (Score:5, Funny)
suddenoutbreakofcommonsense, but holyfreakingshit conveys my feelings better.
I haven't finished reading TFA yet, but this seems huge if it pans out — not only would software patents be invalidated, but essentially all "business process" patents would get tossed out as well.
Re:I was going to tag this... (Score:5, Funny)
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What about compression algorithms? (Score:5, Insightful)
Does compression of data count as "physical transformation" (IMO it's not, but I wonder what the USPTO thinks about it)?
And if this turns out well, does that mean that the MP3 and MPEG4 formats will no longer be patent encumbered?
Mixed Blessings (Score:5, Insightful)
First of all, can I just say, WOO HOO! This has been far too long in coming!
If this is what it sounds like (and no, I didn't RTFA; way too many links that look like they're probably rich in legalese!), it could pull the rug out from under many patent trolls, and allow a lot more innovation to come back into the US software world.
However, precisely because it has been so long in coming, it could mean a major shakeup of a number of things. One important example is listed right in the summary: Google's PageRank patent. With that invalidated, other search engines can legally use PageRank, without giving Google a dime, which could give them the same searching power as Google.
I can't even begin to speculate what the fallout of this would end up including, but I think it's important not to underestimate it. However, even if there are some short-term negative consequences, I think most of us here will agree that in the long term, at least, this is a big win for everyone (well, everyone but the patent trolls, that is!).
Dan Aris
Re:Mixed Blessings (Score:5, Informative)
other search engines can legally use PageRank
That's where Google's pal "Trade Secret" comes in, after all, it's not like they list the algorithm they use to rank pages on their front page. Their patent reads more like "PageRank exists [uspto.gov] and we use it to order results from most relevant to least relevant and then display those results with links to the user, doing so is hereby patented" i.e. business process at its finest, with not a word that can be used to actually implement PageRank.
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Re:Mixed Blessings (Score:5, Insightful)
If the patent is really like that it is useless
Ding ding ding! PageRank's patent is simply one of thousands upon thousands of useless patents exactly like this. Take, for instance, this lawsuit [cnet.com] over this patent [uspto.gov]. Read the line items there, and tell me how one would go about creating a "video codec" using "a single semiconductor chip". I'm almost willing to bet that this "Advanced Video Technologies" couldn't tell me either, but I'm sure they thought that it sounded like it would be a good idea.
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You can't have it both ways (Score:5, Insightful)
You've got to decide whether software patents are good or bad. If it's good for Google to patent the idea of page ranking, then software patents, in general, must be a good idea. If software patents are a bad idea, then allowing Google to have a software patent on the PageRank algorithm is a bad idea.
In the future, if software patents are basically denied altogether, Trade Secret law will used to protect this sort of thing. Unfortunately for the many companies like Google, who've already been awarded patents, the algorithms are already disclosed. Which is why you will probably see some sort of transition period where currently existing software patents aren't just immediately invalidated, but I suspect will be grandfathered in - a basic principle of fairness is you can't change the rules after someone has already upheld their end of the bargain - the patent bargain is that you publically disclose your 'secrets', so that other people can *eventually* use them, but get legal protection on those secrets for a limited time. Telling people who've made disclosure that suddenly they get no protection on their disclosured algorithms is something I don't think is gonna pass - there will be too much resistance from companies on legislators to get protection for this sort of thing.
Personally, I think search engine competition is a good thing. I think competition in general is a good thing. My only concern with outright gutting of the patent system, is that now much knowledge that would have been disclosed in patents, will now remain locked up as trade secrets and NOT eventually become generally available to practitioners of software engineering, and so will, long-term, hold back the progress of computer science. Of course, we all know that right now, patent trolls are holding back the progress of computer science even more. Sort of a lose-lose situation. I guess gutting software patents is, really, probably the lesser of two evils here.
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quick (Score:5, Interesting)
Hope this gets done quickly, because the EU and other players are pushing for software patents and one of the main arguments is "harmonisation with the global (read: US) systems".
And I'm very keen on finding out what their next pseudo-argument is gonna be.
Retroactive? (Score:5, Insightful)
The PTO changing the rules to cancel previously approved patents would generate massive legal problems. In particular, companies have spent billions of dollars to register patents, only for the PTO to say "Oops, just kidding. Jokes on you."
No matter where you stand on software patents (and I'm against them if they can be restricted sensibly, BTW), that's no way to run a patent office.
Re:Retroactive? (Score:5, Insightful)
Changes to the scope of matters to which patent protection applies would affect existing patents, since those patents would no longer relate to patentable subject matter and thus could not be enforced in court.
The PTO is not changing the rules, the PTO is arguing to the courts that the law has been incorrectly applied (including by the PTO) in the past, and that the law should be correctly applied now and in the future. Since patent rights are not inherent rights, but privileges granted by law, there is no basis for protecting them other than the laws passed by Congress authorizing and limiting them. If those laws are incorrectly applied to restrict freedoms of others in ways that the law does not authorize, it is a violation of the Constitutional rights of every person affected (specifically, its a deprivation of liberty without [procedural] due process).
If the PTO is correct, those companies spent billions of dollars to exploit a misapplication of the law to which from which they were not entitled to benefit but did, in fact, benefit. Since they will neither be recompensed for the expenditures nor forced to disgorge their already-realized ill-gotten gains, I don't see the particular problem here.
This seems to be a fairly routine controversy over what the law means and how it should be applied vs. how it has been applied, not some kind of unusual power grab that you are characterizing it as.
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Previous lawsuits from frivolous patents? (Score:5, Insightful)
Google will be fine. (Score:5, Insightful)
That blog seems to want software patents to continue -- not surprising, really, given that it's a "patent law blog", and lawyers are the ones with the most to win from the cottage industry of software patents.
While I doubt this ruling will stand, I hope it does. Google has an enormous amount of manpower to throw at this kind of problem, most of it highly intelligent. The only way this hurts Google is if a competitor is able to implement PageRank (and other features) so much better than Google that people start to switch -- and I doubt Google will be standing still as this happens.
The fact is, software patents have had an overwhelmingly detrimental effect.
Does anyone really believe that, for instance, h.264 would never have been invented, were it not for patents? It would either have been open, or some interested party would have paid for the development.
As it is, while it's relatively cheap to obtain the computing power needed to, say, transcode a large library of video to h.264, the licensing cost can end up being something like $2500 per machine used in this capacity. And because of the longevity of patents, it seems unlikely that it will expire before a better encoding option surfaces.
Yeah -- ever wonder why YouTube took so long to convert everything to hi-def, when they have the computing resources of Google available? I think we know now.
I can imagine software patents being a good thing, but not in their current form. Getting rid of the 15-year-monopoly on an ephemeral idea or a mathematical function can only be a good thing for society as a whole.
The natural workaround... (Score:5, Funny)
...is for companies to employ a "physical object" provision in their patent filings. Google's PageRank patent, for example, may change from:
"A computer implemented method of scoring a plurality of linked documents"
to:
"A computer implemented method of scoring a plurality of linked documents with possible applications as a shower curtain"
Mixed feelings... (Score:5, Interesting)
Then I got one, and was paid good money for it (sold it to the company I was working for).
And now it may become invalidated. Hmmm... While some software patents are ridiculous, such as the XOR algorithm and the "one-click" purchase of Amazon, others that involved true ingenuity and shrewdness perhaps should remain? If the same intellectual "energy" goes into creating an algorithm as it does, say, a widget, should it not be awarded *some* protection?
I am really mixed on this because of all the abuse software patents have seen. At the same time, when the whole notion of patents was drafted, that was no such thing as "software" Now, we have software running everywhere, including controlling such machines as the car you drive.
I know I will be hissed and booed, but perhaps there is *some* place for *some* software patents.
But in today's high seas of corporatism, many patents are abused anyway, and not just software ones. Big corporations will use their patents as "head whackers" where one corp will sue and counter-sue over patents just to gain market advantage, as opposed to exploiting the market for a patent. It's a fine distinction, one I am not sure about.
viewpoint of the article (Score:5, Insightful)
I suppose the author, Mr. Duffy, thinks he wrote a fair and balanced article. He mentions several times how valuable certain patents are, and that this change "threatens" many patents and will "destabilize" patenting. There is no mention of the gains to society, this seems to be purely a lawyer's outlook on the immediate consequences to patent attorneys and their clients. Clients will lose a lot of patents, oh no!
There's no mention of how this will greatly help everyone against patent trolling. The closest he gets is a mention that this is "cause for celebration among those ... philosophically opposed to property rights in innovation", as if there are no real benefits to be had, as if that's a point that is of no interest to any except a few theologians of some obscure religion, He writes that this is a departure from over 2 centuries of tradition. We think otherwise. The tradition of patenting is over 200 years, yes, but the tradition of patenting software is perhaps only 30 years old, not 200. And the "system is supposed to be designed to encourage ... the innovative", but there is nothing about the means or any studies about the system's effectiveness. Are we supposed to take it for granted that because the system was designed to accomplish a purpose, it does so? Apparently we are supposed to take that view. How else could a "contraction of patent eligibility" be seen as "very troubling"? To the contrary!
He concludes that figuring out answers to these "fascinating questions" will keep patent attorneys employed. I would add gainfully to the front of employed, but I'm doubtful that these questions are "fascinating", any more than a "debate" over the merits of Young Earth Creationism vs Old Earth Creationism is interesting. We know the answers already, it's that some don't like the answers and have tried to create debate and controversy out of nothing.
Re:Can Someone Please Speak English? (Score:5, Insightful)
You don't need to be "in the know."
The patent office is tired of BS patents for ideas, and is telling inventors that it has to transform a Lumpy Object (to quote Tom Peters) or be part of a process that is inextricably tied to the operation of a machine (for example, a process to get an internal combustion engine to get 100MPG.)
Simply coming up with a software algorithm or something in the abstract won't be patentable.
(And, IMO, shouldn't be patentable. But of course, it's easy for me to say that because I don't hold any patents, least of all a software patent.)
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Re:Can Someone Please Speak English? (Score:5, Insightful)
(And, IMO, shouldn't be patentable. But of course, it's easy for me to say that because I don't hold any patents, least of all a software patent.)
Sure, but for anyone coming from the other side, who does have software patents and is thus in favor of keeping them, all I can say is this: You would be nowhere and have nothing if patents had been allowed in the first thirty years of electronic computing. All the sorting algorithms, all the OS scheduler algorithms, all the compiler technology, all the things you take for granted every day, would have been locked up and all the amazing development that required freely taking these basic ideas as building blocks for more ideas would have faced repeated decade-long roadblocks. The environment in which you are creating your software patents would not exist if they had been able to place those roadblocks to progress just as you are doing today.
So sucks to be you, Mr. Software Patent Holder, but the health and development of the industry requires you to take down your toll booth.
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Re:About damn time! (Score:5, Funny)
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Re:About damn time! (Score:5, Informative)
This calls for a Kermit full-waving "YAAAaaaaaaaaaaaaaaaay!"
Err... not so fast.
The PTO is an administrative body, not a legal body. It has no authority to state, "these types of inventions are patentable, and these aren't." It cannot impose new substantive requirements on inventions, including "physicality."
The PTO has taken this position a dozen times in the past - and it has been repeatedly rejected by the federal courts. The federal judges must be tired of having to explain to the PTO that "physicality" is not, and never was, a requirement of patentability.
So what we have here, once again, is the PTO exceeding its authority. The federal court has already hammered the PTO once this year for this (relating to its imposed requirements on continuation rules.) Expect this to occur again when the federal court decides In re Bilski.
Look, guys - nothing's gonna change. IT is one of the only consistently thriving segments of the U.S. economy, and the drivers of that market - Intel, IBM, Microsoft, Apple, Google, Yahoo, Adobe, eBay - all utilize and support software patents. If anything, they're pinning an increasing emphasis and reliance on software patenting. And they all have great lobbyists, so expect Congress to step in with new patent legislation if it looks like software patents are in jeopardy. (They've done it before, folks. Consider 35 USC 103(b) [uspto.gov] for a specific instance where Congress changed the law to support biotech patenting.)
- David Stein
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