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Time To Abolish Software Patents?
Posted by
Soulskill
on Fri Feb 29, 2008 08:15 AM
from the reply-hazy-try-again dept.
from the reply-hazy-try-again dept.
gnujoshua writes "Has the time come to abolish software patents? Fortune columnist Roger Parloff reports on a new campaign called End Software Patents, which he views as 'attempting to ride a wave of corporate and judicial disenchantment with aspects of the current patent system.' Ryan Paul of Ars Technica writes that the purpose of the campaign is to 'educate the public and encourage grass-roots patent reform activism in order to promote effective legislative solutions to the software patent problem.' The campaign site is informative and targets many types of readers, and it includes a scholarship contest with a top prize of $10,000.00. We've recently discussed the potential legal re-examination of software patents."
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Courts May Revisit Software Patents 259 comments
An anonymous reader writes "It looks like the courts may finally be gearing up to overturn the ruling that opened the floodgates for both software and business model patents. It's been nearly ten years since the US courts decided that business methods were patentable and that most software could be patentable — and we've all seen what's happened since then. With all the efforts to fix the patent system lately, it appears that the court that originally made that decision may be regretting it, and has agreed to hear a new case that could overturn that ruling and restore some sanity to the patent system."
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Yes. (Score:2, Informative)
Re: (Score:2, Funny)
No. (Score:3, Insightful)
Re:No. (Score:4, Insightful)
And as the parent suggests, I think a shorter term for software patents is a great idea. 17 months is probably a bit short -- I doubt many good ideas could make it from proof-of-concept to market in under 9-12 months, which doesn't leave a lot of protection time left on the patent. But certainly there's some single-digit number of years that would provide a workable balance.
For that matter I think the term of a patent could be variable in general. We'd want limits on the valid term range, but based on the patent type and things like regulatory barriers to market entry (for example in drugs, where drug X must get FDA approval which takes 2 years, but drug Generic-X can use the previous approval -- the government provides a barrier to market entry that is unique to the applicant and doesn't apply to other in the industry) we could certainly pick a more suitable term for almost all patents.
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Re: (Score:3, Insightful)
Because computers are general-purpose machines, and to say that a computer acting in one manner is a different invention than a compute
Yes. (Score:2)
Weigh the options. (Score:2, Insightful)
Re:Weigh the options. (Score:4, Insightful)
I am not against software patents. I am againt most of the software patents. Software patents in my mind need to be very inovative and considered something where people said you can't do this with that, type of mantality. But most of the patents are not new ideas or something non ovious. Most of them are cases where any good programmer would come up with that method when given the problem.
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Re:Weigh the options. (Score:5, Interesting)
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Re: (Score:3, Informative)
But you can patent using a mathematical algorithm to do something. I mean, at some level everything becomes a mathematical algorithim. The arrangement of chips to optimize [don't know enough specifics] is based on a mathematical algorithim.
So, the math behind GIF comprssion may not be patentable, but an image file format compressed in that way would be.
Re:Weigh the options. (Score:5, Insightful)
Historically, mathematicians (as well as other people like scientists) have never been granted an monopoly on the use of the results of their research, and it's not clear why should that change?
As you acknowledge, it's mathematically impossible, so let's look at a more likely situation: you release your great new application, except big_company comes along and points out a range of other patents of theirs that you are infringing upon.
At best, you might be allowed to cross-licence if you have something they want - in which case, they use your "invention" anyway. Otherwise, you have to stop distributing your product altogether (and hope you don't get sued).
Even if we did accept your hypothetical scenerio - it's not clear that a world where hard drives everywhere have double space is worse than one where the only allowed application of this knowledge is your little app.
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Re:Weigh the options. (Score:4, Insightful)
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Software patents aren't the problem (Score:5, Insightful)
When patents are easily and fairly licensed, the incentive to use them is increased, and the patent holder reaps the rewards of the increased usage. When they are kept locked down tight and only used as bargaining chips in patent wars, then no one benefits, not even the patent holder.
Patents should be freely licensable if the holder does not currently produce a product based upon the patent. The patent should be negotiable to any other third party who requires it, and it should be available at a reasonable price for reasonable terms. The only time a licensing request should be denied is in the case of gross misconduct of the licensee or if the licensee is a direct competitor to whom providing the patent would materially damage the patent holder. An arbitration agency should be in charge of deciding if a license denial is valid, and to decide if a particular patent holder is denying license requests too often.
Correction:Software patents *are* the problem (Score:2)
Also, some guy claims he prooved mathematically that software patents fail (disclaimer: i don't understand it) [1].
[1] http://www.juergen-ernst.de/info_swpat_en.html [juergen-ernst.de]
Re:Software patents aren't the problem (Score:5, Insightful)
You seem to assume the existence of wise, benevolent Solomonic figures who can fairly arbitrate these disputes and decide what is 'reasonable'. But past experience with the USPTO and EPO shows that those who are already supposed to police the system can't be trusted; they tend to be captured by special interests and just do whatever will increase the scope of their own powers.
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Re: (Score:2)
Take that, Kurzweil !
Re: (Score:3, Insightful)
One might argue that the patent holder gains by vendor lock-in and monopoly.
Re:Software patents aren't the problem (Score:5, Insightful)
Take the Blackberry/RIM case as an example, the other company just patented 'wireless e-mail' instead of a usable documented working prototype.
Thus: all kinds of theoretic or obvious ideas are being patented, just waiting for someone to build them and then sue the hell out of them.
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Re:Software patents aren't the problem (Score:4, Insightful)
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Re:Software patents aren't the problem (Score:5, Insightful)
Sorry, but that's plain bullshit. Patents exist for two reasons - lawyers and patent clerks make money off of them and large corporations use them as cudgels to beat off small competitors who will completely overturn the corporation's revenue stream.
Back when software patents were first being discussed by the PTO, it was clear that "the little guy" wasn't part of the issue at all. The San Jose Mercury was reporting on the hearings as they were held around the country "to solicit public input..." When the road show came to Silicon Valley, developer after developer after developer got up and spoke against them. Corporate lawyer after corporate lawyer after corporate lawyer spoke in favor. Well there was one exception - a developer who had written a piece of software that would show you what you looked like with different hair cuts. Even back then there was already prior art on that "invention." Somebody had written a mug shot package for the Mac that police departments used to help identify perps.
Towards the end of the hearing, a developer got up and pointed out how almost all the developers had spoken against the proposal and the lawyers had spoken for it. Bruce Lehman, the Patent Commissioner at the time and who was running that particular hearing, agreed with a smirk - he was a lawyer. You see who won out.
I've heard a very few good developers speak in favor of patents. Bill Atkinson comes to mind but he was speaking more in the abstract vs the reality. Most of the developers whom I've heard favor patents weren't very good as developers and therefore didn't realize that patents strike at the very core of what we do which is improvise on pre-existing ideas. The best software out there isn't the software with some unique, and hence patentable, feature. It's the software that melds the features into a coherent, consistent package that works intuitively. Doing that well is so damn hard that having to fight patent trolls and hack developers who claim feature "x" is their invention adds nothing.
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Re: (Score:3, Funny)
Terms - the following terms in the post are extremely vague and add only complications (read: dead weight cost, regulatory verbiage) to the overall system:
...easily and fairly licensed...,
Re: (Score:3, Insightful)
we have a nasty habit of finding ways to "win" a system, any system...
Cure worse than disease (Score:3, Funny)
We all know the answer, there should be some kind of legislation or law (IANAL) that should enforce patent owners to
a) keep developing software based on the patent, not just earn royalties
b) be rightful creators, or earn the patents on a company merge
c) be a real company, not just some patent troll
Where a, b & c should be all true.
My 2c,
W
Re:Cure worse than disease (Score:5, Insightful)
You make it sound like they lose all their protection for the software. That isn't the case. It will STILL be under a copyright.
And if something can be easily re-implemented (i.e. CSS/deCSS), then does it really deserve the ability to stifle all competitors like patents do ? Shouldn't the best software/best value be the winner instead of whomever got to the patent office first ?
Neither software nor should processes be copyrighted. How do you think the world would have been if Ford had patented the assembly line ? Do you think we would have been able to advance manufacturing if he had ? Do you think he would have licensed it to his competitors ?
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Re:Cure worse than disease (Score:4, Interesting)
It's pretty easy to "re-implement" newly developed pharmaceutical drugs as well...
The cost of development of both drugs and mathematical concepts (software) can be extremely high. And if you don't give companies the options of patents to protect their developments, you can immediately say goodbye to all open standards and scientific sharing. It'll all instantly switch to undocumented and obfusticated binary-only code. And since reverse engineering is simply too easy, the only workable model will be to create a new product with the advent of each incremental improvement they come up with. The cost of developing something advanced like H.264 can't exactly be covered by selling support books...
How do you think the world would have been if the Wright brothers had patented the airplane?
Oh, that's right, they did... Not only did their patents NOT drag the industry down, it spurred the development of alternate ways to achieve flight, which soon after gave us the methods we know and use today... That nice new Boeing 787 doesn't exactly use "wing warping" now does it?
And I should point out that DVD-CSS is NOT patented, and the assembly line no doubt would not have been unique enough to be patented, or at least would have had more than enough prior art in slaughter houses to invalidate it quickly.
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Re:Cure worse than disease (Score:5, Insightful)
What's nonsense is the claim that someone can have exclusive ownership over an idea or pattern. It creates a whole bunch of unintended consequences. I fail to see how legislation can fix that.
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Re:Cure worse than disease (Score:5, Interesting)
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Copyright, trademark, and trade secret (Score:3, Informative)
I don't like how software gets 3 kinds of legal protection where anything else in the world only gets one. With software you get trade secrets, because you never have to release your source code. You also get copyright, so the relased binaries (or source code if you choose to release it) can't be copied unless specific permission is given. You also get patent protection. No other thing produce by people gets so much legal protection.
Cartoon characters are subject to exclusive rights under both copyright and trademark law. In addition, the model sheets [wikipedia.org], which help determine whether a drawing is off-model [wikipedia.org], may be unpublished and therefore a trade secret.
Re: (Score:3, Insightful)
Unfortunately Britain is behind the times (Score:3, Insightful)
So, while software patents probably do need abolishing (or at the very least being converted to a proper patent that can then be implemented or described in software, rather than an algorithmic patent) I think we in the UK have a leadership that think otherwise and a populace who don't know much better and don't care unless it is in some reality TV show.
Good job with the bathwater, watch the baby (Score:5, Insightful)
The problem isn't software patents. The problem is actually business model patents masquerading as software patents. Another issue is that patent length is standard across industries, when it should vary based on the timescale of innovation. Seven years in software is an epoch; the same for pharmaceuticals would be about a third of the amount of time spent developing a drug.
But the mechanism by which one implements his invention shouldn't matter. The fact that the bar is too low is an entirely separate problem.
Re: (Score:2)
Speaking of pharma stuff, did you knew that the industry probably spends more an advertising than on R&D [1] ?
Perhaps they should be able to patent certain types of ads, too ?
[1] http://www.google.com/search?ie=UTF-8&oe=UTF-8&sourceid=navclient&gfns=1&q=pharma+advertising+research [google.com]
Right approach for USA (Score:2)
The legislative approach is difficult, but I think it's the best option in the USA. Getting good legislation would be very difficult. Most legislation in the USA is dreadful, but there's a good constitution, so the judges have the job of reconciling the letter of the law with common sense. So I think this campaign is taking the right approach by working via the court system.
FWIW, my background is that I worked on the EU anti-swpat campaign [compsoc.com].
Impacts on Software Industry? (Score:2, Insightful)
My worries stem from several things:
Re: (Score:3, Insightful)
Isn't this the original point? If somebody throws an army of engineers at a problem, and it is thus solved,
Hopefully not (Score:2)
Re:Hopefully not (Score:5, Funny)
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Patents Just Need Tweaking - Ben Klemens (Score:4, Insightful)
Patents are an artificial market force created to prevent certain kinds of unfair practices in a centralized, controlled-distribution market. Applied to a decentralized and distributed market such as that for free and open source software, patents create the nightmare scenario of an exponential increase in legal exposure as developers build upon each other's work.
The answer, then, isn't to do away with patents, but to tweak them so they make economic sense again.
Here is Chapter 5 [wordpress.com] of "Math You Can't Use", and it is well worth reading.
I just purchased the book and am looking forward to reading the rest. A very interesting work.
You can't patent music so why patent software? (Score:3, Insightful)
The main problems with software patents (Score:4, Informative)
The prior art in software is the corpus of all previously written software. To see if something had been done before, it would be necessary for a patent examiner to look through all software that had been written before to determine if a particular technique claimed in a patent application had been used. Programmers don't document their work very thoroughly, much less write journal articles on the techniques they use. And a lot of software technology is just learned by doing and by copying ideas discovered by reading other peoples' code but not formally otherwise documented by them.
Open source software provides one window into the corpus of software, and the IBM Type 4 program libraries (for machines such as the 360 and 1130) have some published source code, but proprietary software is distinctly unavailable for searching in most cases.
The same applies to business method patents. What business writes journal articles about their ways of doing things, especially ways that give them a competitive edge? Again, ideas are learned by doing and copying ideas learned on previous jobs.
One example is the Amazon "One Click" patent. That patent combines the cookie with the open account. You couldn't tell that by looking at the obfuscated language in which the patent is written, but that is what it does. Evidence of the open account as a business process can probably be found by looking in records written in Babylonian cuneiform. However, the USPTO doesn't search records in Babylonian cuneiform to look for evidence that a business process has been used before.
A second example is the patent for which Verizon sued Vonage. Any programmer with a brain would know that to hook up a VOIP system to a telephone switch would require some information and that the best way to organize the information would be in a database. The rest is legal obfuscation. If patent applications had to be written to a level of plain understanding, most would fall away because of obviousness.
Finally, patent applications should be required to include a working model or implementation or some kind of other evidence that the applicant wasn't just patenting the problem but actually had a solution. There was a discussion some months ago on Slashdot about a patent that covered all ways of doing something with graphics. The recipient clearly had discovered something that needed to be done in a graphics system. What the patent claimed was all ways of doing what was needed. IIRC, what the patent actually provided may have been one way of doing it, or might not have provided an actual solution. This is the software equivalent of patenting the electric light without figuring out how to make one that worked, a process that took Edison a lot of time and effort.
Many lawyers have a difficult time understanding technology. Some became lawyers because they weren't good at math and science. When those lawyers become judges, they don't suddenly gain an understanding of technology. They stick to their comfort zone. That is the reason the CAFC required documentary evidence to prove what prompted a PHOSITA to do something obvious. If it wasn't obvious to a lawyer, why should they treat it as obvious to a PHOSITA? Fortunately, the Supreme Court saw otherwise. Perhaps the courts will come to their senses on software and business method patents as well.
Feeding the troll... (Score:5, Insightful)
No, we haven't.
We've established that mathematics should not be patentable.
Oh, BTW: you probably meant "an exception to the rule that he who creates something novel should be rewarded".
Otherwise it just doesn't make sense, with or without Chewbacca.
Well, let's first see if patents even work as intended.
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Re: (Score:3, Insightful)
(* well, except for genes, but that's mad too IMO.)
Re:Now it's personal! (Score:5, Interesting)
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Re: (Score:3, Insightful)
Re:copyright too.. (Score:5, Informative)
2. abolishing COPYRIGHT, not PATENTS, would eventually mean that ALL the software will fall under a BSD-style license, which not only means free (but without copyleft
3. Abolishing copyright won't happen any time soon. *Maybe* if Stallman becomes the president.
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Re:copyright too.. (Score:4, Informative)
Stallman does not want to abolish copyright, the whole GPL relies on it to keep the source free. If he wanted "the other kind of free", he could already have chosen to use or change to a "BSD-style" license, or release everything to the public domain.
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Re:copyright too.. (Score:5, Interesting)
As one who opposes software copyrights, I use the GPL and not the BSD license.
As long as copyright exists, we use it, via the GPL, to prevent others from using it.
When copyright does not exist, the GPL is not necessary, and then the "BSD license"-style freedom takes place.
Choosing the BSD, rather than the GPL is the choice that reflects support of copyright -- it lets others use copyrights on derivatives of your work! If you do not support copyrights, disallow others from using copyright to restrict your software.
Those of us who oppose software copyrights are also pro-GPL, and I do believe Stallman is also in this crowd.
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Re:copyright too.. (Score:4, Informative)
I don't understand what you mean by this. If I was a normal troll I'd say you don't know what you're talking about. Personally I don't like copyrights, but I do like the GPL. This is, however, illogical.
Richard Stallman wants everyone to be able to get the source to every computer program they run. He thinks this is very important, because without the source, you cannot modify the program, you can't learn from it, and you can't see what the program actually does. If you don't agree on this, then you won't agree with my next paragraph.
The only thing that stops $BIG_EVIL_COMPANY to take any GPLed open source project, add random proprietary changes to it, and release it without the new source code, is because if they do, they will break the GPL, and the GPL is only enforcible because of the copyright laws. Without the GPL, and in extension: the copyright law, they wouldn't have any obligation to release the source except for goodwill, and of course the other good things that comes with open source and free software. Some companies or individuals doesn't want or need those good things, and thus they oppose open source.
Of course, I'm not Stallman, and I know he doesn't like the current copyright system either, but completely removing copyrights without putting something else in as a replacement would be bad for free-as-in-libre software.
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Re:copyright too.. (Score:4, Interesting)
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Re:time to burn some karma (Score:4, Insightful)
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