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An Insider's View of Software Patents 405

Posted by timothy
from the broken-record-indeed dept.
An anonymous reader writes "Ross Gittins at the Sydney Morning Herald has published an interesting insider view of software patents. This kind of thing is starting to be a hot issue down here with the US-Australia Free Trade deal about to be ratified and bring our intellectual property laws in line with Micros^D^D^D^D^D^D^D America's."
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An Insider's View of Software Patents

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  • by Anonymous Coward on Sunday August 01, 2004 @07:59PM (#9860132)
    ...and bring our intellectual property laws in line with Micros^D^D^D^D^D^D^D America's
    No. NO. Don't you EVEN fucking blame Microsoft for this mess. Blame the WIPO for having the idea, and Bill Clinton for whoring the United States into compliance.
    • by Bruce Perens (3872) <bruce@perens.com> on Sunday August 01, 2004 @08:17PM (#9860234) Homepage Journal
      Software patenting has been driven by court cases in the U.S. brought by a number of companies that wanted to be able to patent software and business methods. Do a web search for State Street Decision.

      WIPO has been driven by the U.S. (reacting to its corporations) to get the same bad software patent system going elsewhere.

      If you want to blame Clinton for some intellectual property matter connected to WIPO, digital rights management and associated treaties requiring anti-circumvention law would be more accurate.

      Bruce


      • > Software patenting has been driven by court cases in the U.S. brought by a number of companies that wanted to be able to patent software and business methods.

        I read an analysis somewhere that claimed that it also stemmed from the creation of a single court to handle all the cases.

    • by microbox (704317) on Sunday August 01, 2004 @09:25PM (#9860526)
      Don't blame M$, Bill Clinton or anybody else... the real problem is deeply routed in the definition of a corporation.

      You see, some coporate lawyers in the late 19thC realized that they could make a lot more money if a corporation had the rights of a person, and the supreme court agreed they were, with all the rights and privileges there-of.

      Now a coporation is a 'legal' person whose sole purpose is to make money for the shareholders. The CEO and board are legally bound to do so. Unfortunately, since corporations aren't real people, they don't have real morals... other than what will make $$$ for shareholders. Because shareholders aren't liable for the actions of corportions, they don't CARE how the corporation makes money on their investment.

      That's the root of the problem.

      Every corporation is in a free-fall race to the bottom to out-compete it's rivals and make 7% growth in profits. While that level of competition has many obvious good points, it has also created some terrible problems.

      Once one corporation 'buys' a law (such as software patents), then everyone in the industry has to start using them or die. You don't even have to buy a law... if breaking the law and paying the fine (and paying a nice PR firm to make you look shiny) is cost effective, then that's what you HAVE to do if you're going to raise your stock higher than your rivals.

      CEOs and lawyers are not all trolls, they are just cogs in a machine. Corporations have bought off politions all over the world, PR firms, marketers... all so that they can bend and create rules to make more $$$. As soon as one nasty little troll does it... they all have to. If they don't, well, only the fittest survive.

      The solution?

      We have to unravel the legal framework that has come to define what corporations are. Exactly how to do this???? Well, you tell me =)

      • by baxissimo (135512) on Sunday August 01, 2004 @09:38PM (#9860585)
        I believe this is the definitive book [amazon.com] on the subject of the parent's post. A very interesting idea. I haven't read the book, but the author was interviewd on NPR a while back. If I ever start reading books again that's one I'd be interested in picking up. :-)
      • by TheHonestTruth (759975) on Sunday August 01, 2004 @10:11PM (#9860735) Journal
        We have to unravel the legal framework that has come to define what corporations are. Exactly how to do this???? Well, you tell me =)

        Sarbanes-Oxley. Here's a blog about it at Gartner [gartner.com]. Basically Sarbanes-Oxley makes CEOs liable for the actions of the company. Though this does not redefine the corporation as a citizen, it does hold someone criminally accountable for the actions of the corp. It was in response to Enron at all and severly weaked the coporation as an entity that can act wantonly.

        -truth

        • by microbox (704317) on Sunday August 01, 2004 @11:51PM (#9861171)
          Unfortunately you'd have to get rid of the old 'I have no recollection with that' excuse.

          For example, a corp will hire someone to find something out, and say they have no knowledge of how that person does business. That person is actually a spy, and everyone knows that he's going to break the law to get that information. But the CEO's aren't responsible unless you can prove that they knew that the spy was going to break the law when they hired them. Convenient that this situation has arisen.

          It goes deeper than holding CEOs accountable... if you held shareholders accountable, then things certainly _would_ change, but everyone would cry unfair, and it would defeat the point of a corporation.

          Greed is no more basic in shareholders than everyone else, so the definition of a corporation has to change to limit what it _can_ do, because anything it _can_ do it will, including extending the extension of itself, and what it can do.

          For example, corporations fought do be able to patent living organizism back in the 80s. People didn't believe that you could own real life. Well a single firm argued in court that they had invented nothing more mundane then a standard chemical when they modified a bacteria.... and the supreme court (curse them!) agreed with the copr!

          Now companies are patenting the DNA sequences of all the living creatures on earth. The USPTO said you couldn't patent the human genome (thankfully!), however, corps are patenting discoverings on human DNA - such as what the genes do (?!?)

          The limitations I'm thinking of are more along the lines of:
          "corporations have a limited lifespan", and
          "this corporation is created to refine steel"

          This would give a corporation a specific charter that they can't deviate from once it's created.

          Obviously I don't believe that these specific examples would be practicle in the current world!
          • Make the corporation responsible. With the rights of a person comes the responsibilities of a person.

            A corporation, being a legal entity equal to a person, should have the same taxes to pay as a person and get no extra tax breaks. Being a legal entity equal to a person, it should be forced to serve a sentence and pay a fine when breaking the law. Anything less than these things means that something which has been promised the rights of a citizen is being treated preferentially due to its origins of not bei
      • by killjoe (766577) on Sunday August 01, 2004 @10:52PM (#9860889)
        If the corporation is the same as a person then doesn't it have second amendment rights? This seems to make sense since it definately has first and fourth amendment rights.

        The reason I am asking is that a corporation is a psychotic entity. Just like a mass murderer it can feel no empathy towards anyone and is unable to control it's compultions. Studies have definitively shown that lack of impulse control and inability to feel empathy towards others is a necassary (though not sufficient) attribute of being a mass murderer.

        Maybe that's too harsh. Maybe the corporation is not like a person at all. Maybe it's more like a dog. A dog is a living being, it certainly has some rights but not the same as humans. There are laws against cruelty to animals and yet it's legal to put down a dog when it becomes harmful to others.

        Corporations should be treated like dogs. The shareholders are the owners and it's up to them to make sure their dog is properly trained, contained and leashed so as not to harm others. Needless to say the shareholders are also responsible for cleaning up after their dog when it shits in the park.

        If a dog becomes violent and hurts people then it should be put down. The corporation should be TAKEN AWAY FROM THE SHAREHOLDERS AND KILLED WITH NO COMPENSATION WHATSOEVER TO THE SHAREHOLDERS. Furthermore the shareholders should be tried for the crimes of their corporations just like dog owners are.

        This would solve the problem once and for all.
        • Maybe corporations need to be programmed to obey Asimov's laws.
    • by js3 (319268)
      I think it is weird that microsoft gets the brunt of frustrations about software patents. Who got sued half a billion dollars for violating a patent? microsoft. What is wrong with the patent system is small fry getting these broad ridicilous patents that cover almost every variation of the patent and chasing big companies for payout.

      The effect is big companies patenting everything in sight they can possibly imagine just to prevent leeches like that from benefiting from patents they never implemented. EOLAS
  • I agree with the writer of the article, software patents do do a lot of harm to programmers. Saying that monopolies are the only way to make money and should be encouraged is just crazy...
  • by Sebby (238625) on Sunday August 01, 2004 @08:02PM (#9860145)

    Until we see the Patent Office being sued by someone/company that suffered financially or otherwise because of a bogus patent that the PTO granted, we won't see any significant changes to the way things work now. After a lawsuit or two they might finally get the hint to stop granting such bogus patents and maybe even (gasp!) start reviewing past ones once they realize those might become a liability.

    And for those that say such lawsuits would be a burden on the taxpayers, well, I'd say these bogus patent infrigment cases are taking away needed resources to convict criminals.

    And besides, the taxpayers might finally take action once they see the PTO's bogus-patent-granting actions is raising their taxes, instead of only bitching and whining all the time.

    • by liquidpele (663430) on Sunday August 01, 2004 @08:10PM (#9860206) Journal
      Can you even sue the patent office?

      I didn't think you could sue the Federal Government or something like that. (since they are a part of the Feds anyways)
      • That's right I forgot: "The government can do no wrong", right?
        </sarcasm>

      • by Bull999999 (652264) on Sunday August 01, 2004 @08:39PM (#9860342) Journal
        I didn't think you could sue the Federal Government or something like that. (since they are a part of the Feds anyways)

        The funny thing is that you can sue the federal government but the government must give you permission first. While there are cases where the government has given permission to sue, I'd imagine that suing the patent office may be more diffcult than suing a business.
        • by debrain (29228) on Sunday August 01, 2004 @09:42PM (#9860603) Journal
          The funny thing is that you can sue the federal government but the government must give you permission first. While there are cases where the government has given permission to sue, I'd imagine that suing the patent office may be more diffcult than suing a business.

          It's not necessarily that simple. State immunity comes about in many forms, from what I gather. In the USA, it is likely that there are several ways to sue the government, or its agents.

          1. Sue the agency itself, for harm arising from its negligence. As part of the Feds, it might be immune to civil lawsuits through Federal legislation.

          2. Appeal to a tribunal, such as human rights tribunals (if the USA has those), or justice tribunals, or what have you. They sometimes pointedly get around state immunity legislation.

          3. Sue the Patent Agent as part of the Agency; his negligent acts mean the Patent Agency is vicariously liable for damages. This may be different from suing the Agency itself, depending on the immunity legislation. If the Agent acted 'negligently' in their role, they may make the Agency liable.

          4. Sue the Patent Agent as acting outside their duties. If they were so irresponsible as to have acted outside the boundaries of their job, they may be personally liable for your losses. Shallow pockets; sets a nasty precedent,though.

          Mind you, you probably want to find a lawyer if it gets to that. Lobbying your senator or congressman, or whomever your elected representatives are, is probably the best option.
    • by NightWulf (672561) on Sunday August 01, 2004 @08:11PM (#9860210)
      Unfortuneatly what will happen is after said lawsuits, the Patent Office will just raise the fees to file a patent. They won't actually change anything, just keep raising prices. It will be even harder for regular people to file for patents, while the corporations still can afford it.
      • by Sebby (238625) on Sunday August 01, 2004 @08:15PM (#9860227)
        Then we also need to have the PTO and IP laws changed: file all the patents you want, even the kitchen sink; when an infringment suit comes along, the patent is re-examined before any lawsuits are allowed to go forth. Then when there truely is patent infrigment and the patent holds up, let the lawsuit go forth.

        This would avoid the common scenario where the defendant is sued out of existance even though the case has no merit!

      • by AuMatar (183847) on Sunday August 01, 2004 @08:38PM (#9860337)
        Its expensive enough already. I looked into the possibility of applying for a patent with the intention of freely licensing it to any GPLed product. A defensive patent really. But the patent, even without a lawyer, is expensive enough to put it out of my range unless I'm sure I can make money on it.
      • by killjoe (766577)
        "It will be even harder for regular people to file for patents, while the corporations still can afford it."

        you realize that it already takes about 20K to get a patent don't you. It's already out of the regular peoples reach. I get a patentable idea every day. If it was cheap and easy every single one of those ideas would be a patent by now.
      • I am PRAYING that they make these patents much more expensive. The patents system is useless for regular people with non-fraudulent intentions. So it costs a few thousands of dollars. Big whoop. The cost to the industry of a bad patent can extend into hundreds of millions of dollars. (witness recent ridiculous patent decisions against Microsoft.)

        At the very LEAST, they should be required to pay the hundreds of thousand dollars or so necessary to pay for REAL experts in the field to sort out crap pate

    • by ahbi (796025) on Sunday August 01, 2004 @08:15PM (#9860223) Journal
      Until we see the Patent Office being sued

      Remember, due to the concept of sovereign immunity you can't sue the government unless they say you can.
      (Unless, you sue for injunctive relief claiming that the action is unConsitutional, and, after Eldred, I won't hold your breath there.)

      • Who says it needs to be Americans or an American company doing it? I would love to see the EU or a group of UK companies sue the ass off the PTO

        • Who says it needs to be Americans or an American company doing it? I would love to see the EU or a group of UK companies sue the ass off the PTO

          This would be very unlikely, since we have companies like BTG Plc [btgplc.com] which license patents worldwide. Plus European contractors for government DBMS are extremely keen to maintain their monopoly. To quote David Blunkett on ID Cards "we have to keep the terms of the contract strictly confidential and away from the public in order to guarantee value for money".
    • by Bruce Perens (3872)
      Lying on your patent application is perjury. It's a federal crime, and you can do serious jail time. But nobody does. It might be possible to show a federal prosecutor that some of the more blatant patents were filed even though the filer knew they were not inventions, and that the filer should be prosecuted.

      Bruce

  • ^H^H (Score:5, Informative)

    by hey (83763) on Sunday August 01, 2004 @08:02PM (#9860146) Journal
    Er, it's control-H (^M) not control-D (^D) that erases. Control-D is eof. Get outa your GUI!
    • by Dwonis (52652) *
      Do you use a Dvorak keyboard layout?
    • Re:^H^H (Score:3, Informative)

      by manabadman (589984)

      Though control-H acts like backspace, and control-D is eof, in most Unix shells (and cisco's IOS) control-D will delete the character directly under (to the right of?) the cursor.

      So ^B^B^B^B^B^B^D^D^D^D^D^D would work (^B moves the cursor on character to the left). If you really want to nitpick though, he deleted 7 characters even though 'Micros' is only 6 characters.

      PS Only heterosexual gay chimpanzees support software patents.

    • Re:^H^H (Score:3, Funny)

      by Xzzy (111297)
      I hit ctl-s the other day, does it stand for "slow" or something? :( Been waiting 48 hours for a ps -eaf to finish.
    • Er, it's control-H (^M) not control-D (^D) that erases. Control-D is eof. Get outa your GUI!

      Just a typo, I know, but control-M (13) is carriage return. That might still be valid, though... assuming a word processor that doesn't assume control-K (10, line feed) with control-M, you could return to the beginning of the line and overtype.

      ^Ks this post a waste of karma, or what?^M
  • It does make sense to standardize on one set of intellectual property laws internationally.

    It gets really confusing to try to figure out the different times at which copyright expires across different countries, or to know where your intellectual property is already protected and where you have to jump through additional hoops.

    Settling on an international standard that is mutually agreed upon strengthens the companies within those nations because they don't have to cope with several sets of rules. Like

    • Uh... Would you standardize on one horrible dictator for the sake of strengthening the collective?

      I mean, really. You're right that it strengthens the companies, but does the economic good of certain companies really balance out the evil of stupid patent law? Remember that when a company makes money, they make it from other people.
    • by lpontiac (173839) on Sunday August 01, 2004 @08:16PM (#9860232)
      It does make sense to standardize on one set of intellectual property laws internationally. It gets really confusing to try to figure out the different times at which copyright expires across different countries, or to know where your intellectual property is already protected and where you have to jump through additional hoops.

      Here's the thing. I place more importance on having the laws of my country reflect the wishes of myself and my fellow citizens, than I do on making it easy for you to come over here and engage in commerce.

    • I suppose if everyone else in the world ate McDonalds and spoke english that things would be easier too.
      Don't be such a retard though.
    • This is the 2nd feeblest, most cripple minded argument I have ever seen as a justification for software patents. For a start, you've made the very stupid mistake of lumping everything together under the term 'intellectual property' and then gone and waffled on about copyright duration - you should've been modded offtopic, not insightful!

      As for "having to cope" with several sets of rules, well if you can't cope with a handful of different languages, national bureaucracies and patent application procedures,
    • Completity isn't always a bad thing. Espically when it protects you from another countries bad ideas.
    • by JInterest (719959) on Sunday August 01, 2004 @10:41PM (#9860843)

      Settling on an international standard that is mutually agreed upon strengthens the companies within those nations because they don't have to cope with several sets of rules. Like the standardization on the Euro, it reduces complexity and ultimately is a good thing.

      Sure, it helps the rich and powerful stay that way, keeps the small and weak from upsetting the apple cart, and assures that the status quo ante favors those already on the top of the heap.

      Grrrrreat.

      For my part, I think that a little anarchy is a good thing, for those who love freedom. It was the early "standardization" of the Chinese nation, united under the uniform rule of one Emperor, united under one authority, that caused the eventual stagnation of their culture. Similarly, the more "uniform" power and authority became in the Roman Empire, the more oppressive and rotten it became.

      Voluntary standards, i.e., those that can be disregarded, are good. Involuntary standards, i.e. those that are backed up with bayonets, prisons, and all the powers of the modern State, are less good, particularly when their effect is to concentrate wealth and power in the hands of a few.

      Sorry, this isn't a good thing from my point of view.

  • by oostevo (736441) on Sunday August 01, 2004 @08:03PM (#9860157) Homepage
    Since this is a bit of a viscious cycle (the more patents that the Patent Office gets the more it says "Sounds good"), there obviously needs to be a change, but I've yet to see a truly plausible example of what would be a successful change to our patent system.

    Patents, at times, actually are good things, so entirely doing away with the patent system wouldn't be a good idea, nor would adding more money to the patent office budget (the same problems we have now, just more of them), and making the patents harder to apply for would just benefit the offensive-patenting corporations with the money to hire expensive lawyers.

    So what do we do about it?

    • here ya go... (Score:3, Insightful)

      by zogger (617870)
      ...want an alternative? Anything you can physically hold in your hand or touch = OK to patent. Some theoretical concept, process, algorithym, arrangement, etc commonly referred to as an "intellectual property" = *not* OK to patent, but OK to copyright if the creator chooses to.

      simple easy solution
      • I'll just throw in a "i agree completely" here.
        It's amazing that such an easy and staightforward thing like that can get so f*cked by sleezy coprorations and politicians...
      • Re:here ya go... (Score:3, Insightful)

        by Valar (167606)
        The problem is that a patent is really better for an algorithm. Why? One way to think about it is that patents cover ideas and designs, whereas copyrights cover expressions of these ideas. The problem isn't that some ideas related to software are being patented, it is that the patent office is granting patents for obvious or trivial algorithms and ideas, as well as ones with substantial prior art. Without a significant overhaul of the way copyright works, however, patents are still the most appropriate ip p
        • Re:here ya go... (Score:5, Insightful)

          by Wolfbone (668810) on Sunday August 01, 2004 @09:45PM (#9860611)
          Good grief! you're arguing for the exact reverse of that which is right, just and equitable. Algorithms are mental processes, mathematical ideas which when enacted in software cost next to nothing to manufacture and distribute. To use the patent system to exclude others from even using them is an assault on the very foundations of natural justice, not to mention economically unjustifiable. No-one ever sold a bare algorithm in a shrink-wrapped box - in case you hadn't noticed, each saleable software product is likely to contain many, many algorithms and ideas, and for that reason and others it is appropriately protected by copyright.

          I don't think I really care whether the chemical companies consider patents on their expensive to build and operate production processes to be crazy or not - it's up to them. I do however think your idea of allowing ideas in mathematics and computer science to be patentable to be both crazy and evil.

          I have never committed a crime on slashdot before, but I shall do so now, by manufacturing and distributing a patented invention:

          echo -n $'__________\r'
          for ((i=0;i10;i++))
          do echo -n "#"
          sleep 1
          done
          echo

          The patented progress bar, enacted in the shell in a few lines and all protestations that this one is trivial and should have been excluded by the patent office are meaningless unless you can describe specific criteria that the patent office bureaucrats can follow to allow them to discriminate. The RSA algorithm is just as trivial and yet I have heard many people mistakenly claim that it deserved a patent for it's originality and cleverness - but that cleverness was all in the maths - the idea, not the algorithmic expression of it and so a justification of patentability of software ideas is a justification of patentability of mathematics. An outrageous position.
        • copyright protection for a concept, process or algorithm would easily be avoided by simply "rewriting" it differently (rearranging some code, or adding some minor steps to the process)

          And that's why copyright works for software, and exactly why software patents should not be allowed. You have a right to protect your work and avoid your work from being copied, but not stifle competition and prevent others from producing similar, yet different, methods.

          There are multiple methods of achieving the same resu
    • Abolish them. Seriously. Children in grade school tend to get chastised for immaturity when they cry "I thought of it first". Why does this behaviour get rewarded as an adult?

      Or, if you ABSOLUTELY cling to the idea that greed is the only way anything will ever get done, at the very least shorten terms to the point that patents aren't so lucrative that they're considered the only important thing about doing business. Also, require an implementation to be submitted along with patent applications (to help pre

    • Patents, at times, actually are good things, so entirely doing away with the patent system wouldn't be a good idea, nor would adding more money to the patent office budget (the same problems we have now, just more of them), and making the patents harder to apply for would just benefit the offensive-patenting corporations with the money to hire expensive lawyers.

      So what do we do about it?

      Well, the question isn't "is doing away with the patent system a good idea?",
      it's "is doing away with the patent be

  • But Microsoft beat me to it. But it's still useful for the early Slashdot posts! I may go back and patent the printing press though, that'll show you all.
  • by theluckyleper (758120) on Sunday August 01, 2004 @08:05PM (#9860173) Homepage
    IANAL, but one way to improve the patent situation (and the IP situation too, for that matter), which I didn't see mentioned in the article, would be to impose a statute of limitation on infringement suits. This is how they do things in China [chinalaw.cc].

    China?! Yes, that's right. Some of their laws are better than ours...

    This would prevent asshats like Unisys (and, if applied to IP, asshats like SCO) from suing for infringement WELL after they became aware of the issue. A statute of limitaion would ensure that underhanded tactics such as allowing the public to become addicted to GIFs [burnallgifs.org], and then suing years and years later, would no longer be effective.

    This wouldn't solve all of the problems with software patents, but I think it's a step in the right direction!
    • ... how 'bout we require patent holders to very obviously be seeking to do something useful with their patents, immediately? you don't get to sit on it, you don't get to hold it and wait for someone else to get the idea ... and you absolutely don't get to claim patent rights if someone else invents the same thing without your help (though it'd be hard to prove they didn't see your patent application, even if you don't document elsewhere.) regardless, patent holders should be required to obviously be trying to find buyers from day 1, or be building their own solution (not vaporware) based on the patent. the whole point is to give you a little extra time (advantage) to get your shit together before the competition comes in, -not- to give you a nice legal monopoly to sit on. besides, if companies are already innovating ... do we need patents? the point was incentives -- if they're going to create new algorithms and machines because there's a market for them (if there's no market within a few years of an invention, the patent is just an expense to you) ... then we don't need patents at all. (reminder: incentives of this sort are created out of the clear blue sky, and should be just as easy to repeal.)
      • Couldn't agree more. Companies that have nothing but a patent portfolio and use it to extort money from others are amongst the lowest forms of life.
        The big fish don't need to have patents (other than to protect themselves from leeches who do), they can compete head to head. May the best product, or marketing campaign, win. If its something really new, the competition will lag by however long it takes them to reverse engineer your invention and develop their own, once it hits the market. The little fish eith
    • Or, they could make good on their implied threats (Mutual Assured Damage/Destruction).

      I just hope that one of the big'uns start a fight! And we'll get to watch all the Microsofts and the IBMs and the Novells and all the rest of the patent pimps Mutually destroy each other. Oh, man, it would be so great:
      "Feel the pain of our 'one-click-purchase'!!"


      "You call that pain?! Taste our 'listing-photos-BY-DATE'!! *ka-boom*

      "Ouch, DAMN YOU! Attack!! 'hold-down-mouse-button-to-make-something-happen'! !!!!!

      "GAaaaaaaahhh, it burrnnnsss!!"

      "Yes, the smell of burning IP in the morning!! Load another round of 'incentives-to-watch-ads'! Fire!!"

      "AAAAAaaaaaaa...aa.. we can't feel our legal department... it's getting dark ... the stock is dropping ... *NO CARRIER*
      Barring that, your thing might have some merit :)
    • How about we simply VOID all the patents that are for retarded things, and ideas, and anything else that can't brought in and shown in their physical hands? This would work too.

      What about all the money already spent on patents? Well, as my dad used to say, "life sucks, then you die".
  • Hmm... (Score:2, Interesting)

    by bobhagopian (681765)
    I'm all for free software and everything, but this article seems a little ridiculous at points. For example, it says the following:

    "The whole idea of software patents is a bit strange, really. A traditional patent is for a mechanical invention that may have taken a long time to design, produce and bring to market, and provides protection for the original inventor while eventually allowing their ideas to enter the public domain.
    Software, however, is mercurial. A good programming idea may only be useful
    • Re:Hmm... (Score:5, Interesting)

      by Bruce Perens (3872) <bruce@perens.com> on Sunday August 01, 2004 @08:21PM (#9860255) Homepage Journal
      I think the point about software being "mercurial" is vague, but what he was probably thinking about it that it's a medium better protected by copyright. Now having both patent and copyright apply to it is indeed strange.

      Bruce

    • Re:Hmm... (Score:5, Insightful)

      by LordLucless (582312) on Sunday August 01, 2004 @08:28PM (#9860286)
      The real difference between software and hardware patents is the time taken to bring it to market. If you invent a mechanical device, if you want to market it, you need to find some way to mass produce it. Unless you are independantly wealthy, that means finding someone who owns a manufactuting plant or two, and getting them to make the device for you. This means that you have to let somebody into your confidence. After you've gone around having meetings with ten or twenty manufacturers, there's ten or twenty people who know a good deal about your invention. You need a patent to ensure that they can't just start ripping off your invention without cutting you in.

      Software, on the other hand, as intangible data, is dead easy to replicate and distribute. Put up a website, buy a bit of bandwidth - and nowadays, setup a torrent, and bingo - the equivelant of mechanical "manufacture and distribution". You don't need a patent to protect you while you struggle to manufacture your software and bring it to market.
      • This is the best explaination for why software patents are retarded that I've read so far. Great stuff.
  • by YankeeInExile (577704) * on Sunday August 01, 2004 @08:06PM (#9860177) Homepage Journal

    This article brings up a point I have been thinking about for a long time: The OSS/FS community is losing sight of the trees for the forest with regard to software patentability.

    We need to fight the patent war on two fronts - the first front: Lobby to make software patents more difficult to obtain.

    And the second front, equally important: Until the rules change in our favor, we need to build up a portfolio of patents, to share and trade with our friends (which anyone in business will tell you is the true purpose of a patent).

    Instead of screeching to the heavans, Software Patents Are EEEEEEEEEVIL, the movement would be better served by gaming the system. If a portfolio of patents is what is needed to keep Free Software Free, then so be it - put our minds to making the application and examination system as easy as possible, and assign patents to some organization (a role that would be well served by FSF if they could stop their jihad.

    For the record, I do not think that software patents are intrinsically evil. I believe in my heart-of-hearts that algorithms are just as much an invention as a better mousetrap, and I disagree with the article author's assertion that the copyright protection granted to an implementation is sufficient protection for this inventive process.

    Plus, you forget that one of the Principles of Free Software, transparency, is fundament in the patent process. The wisdom of the patent system is, In exchange for exclusive right-to-use on your invention, for a limited time, you must fully disclose that same invention.

    I am seriously concerned that the patent process may suffer the same slow creep in the meaning of limited time that has happened surrounding copyright, but that is a separate problem for another posting.

    • by Bruce Perens (3872) <bruce@perens.com> on Sunday August 01, 2004 @08:24PM (#9860273) Homepage Journal
      You may need to think this through a lot more.

      First, going for our own patents in the Free Software community doesn't really help unless we have a huge legal fund behind us to 1) prosecute others and 2) defend ourselves from their patents.

      Second, you should think through whether or not algorithms are mathematical in nature, and whether mathematics is discovered or invented.

      Thanks

      Bruce

      • You do bring up an excellent point that a patent without the backing to fight for it is worthless, and I am sorry to say I have no answer for that. Perhaps finding some white knight (IBM) to help underwrite that would be worthwhile.

        As to the second point -- I think there is a continuum - some algorithms are clearly mathematical in nature, others are much more procedural.

        I am reminded of an era when to patent an algorithm, it was necessary to show that it could be implemented in hardware, patent that

    • You'd effectively kill off FOSS. As Bruce mentioned we would need a warchest to effectively wield the proposed portfolio but we'd also need a warchest just to build the portfolio. Software patents require lawyers to go over the claims and work on making them as broad as possible.

      So you not only have to pay patent fees but you also have to retain a lawyer and pay legal fees over a couple of years to get the patent pushed through. How many FOSS developers are going to pony up that cash? How many FOSS develop

    • Really lame ideas. (Score:3, Interesting)

      by twitter (104583)
      The defense given in the article echo's yours in a less rabid manner:

      So we got another round of emails encouraging us to file patents, as a way of defensively time-stamping some of our work, and offering attractive bonuses for doing so. My area is particularly "bleeding edge", and my manager pointed out that we'd look pretty stupid if our everyday activities were patented by a rival.

      This kind of time stamping and proof of prior work can be had for much less money than a patent. Call a notary, that's one

  • Money talks (Score:5, Interesting)

    by usefool (798755) on Sunday August 01, 2004 @08:08PM (#9860192) Homepage
    I think the core of the article implies that the company with most 'spendable' money will win by default in any case.

    Patent Office will grant any plausible applications because "The feeling is that anything contentious can be sorted out in the courts."

    And what happens in the courts? Small guys are burdened with legal fees, which is related to the time spent on preparation, which big guys can just throw a lot to you. If you don't hire enough lawyers to read each and every line properly, you might get caught even if you are the rightful owner of a patent.

    So with or without a patent, big company will eventually monopolize the market by (1) holding a patent and scare everybody off or, (2) taking the patent-holding company to court or, (3) buy out small guys.
  • by ReidMaynard (161608) on Sunday August 01, 2004 @08:08PM (#9860194) Homepage
    It seems (on a very high level) the Lawyer has just found a new market. Look at the small effort he puts forth and all the income it generates for his firm. And he admits, the patents can be fought over later in the courts...more legal fees for him!! If I were your CEO I would feel a lot like the "SUCKER" in the old Bugs Bunny cartoons. I'm sure there is *some* truth to his position, but I find it bad business to go for the "monopoly" brass ring. Its sad when our CEOs go for these get rich quick schemes. just shows you Lawyers and CEOs are greedy SOBs.
  • by Anonymous Coward
    The current patent system is borked. Its for big companies to squash little guys. This article [tyma.com] sums it up.
  • Tending the coals (Score:3, Insightful)

    by acidrain (35064) on Sunday August 01, 2004 @08:15PM (#9860229)
    This article doesn't say anything we don't already know. Yes the American software patent system is fucked, and they are in the process of exporting it.

    It is all very absurd, small companies won't be able to write code, hobbyist coders will need legal insurance.

    What do we do? I am frothing at the mouth after reading the article (yayyyy slashdot) but really, is it worth thinking about without a realistic response? ... sigh ...

    Personally as a Canadian working for a Canadian software company that is being sued with a FUCKING STUPID US software patent, I would be happy to invade the USA and blow up the patent office.

    Would any of you Americans mind? Could someone provide GPS coordinates and photos with targets circled in red? Call it "compassionate terrorism."
    • Ooooh... So you are the reason D. C. is at orange now.
    • If we start putting sane restrictions on patents.... The terrorists have already won.
    • I'll provide coordinates with one condition:

      You let me help bomb the shit out of the patent office, as well as select other governmental offices (Dept of Homeland Security anyone?)
    • As a fellow Canadian, I would like to point out that the views expressed in the parent post are those of acidrain and do not in any way constitute those of the benevolent, democratic government of Canada or its peaceful people.

      We Canadians love our friendly, heavily-armed neighbors to the south and wish them well in their just war against the evil warfare technique, terrorism. We gape in awed silence at the graceful architecture of your Patent Office and other government buildings, and would try to stop so
  • Contradiction (Score:4, Interesting)

    by j. andrew rogers (774820) on Sunday August 01, 2004 @08:19PM (#9860248)
    People need to either accept the idea of all patents or no patents. You can't legitimately have it both ways and be consistent.

    1.) The argument that software patents are bad because most software patents are frivolous is a strawman. Most non-software patents are also frivolous. This is not unique to software, people here only notice software patents because they work in software. If you don't like the frivolousness of patents granted then deal with the general frivolousness of the patent system, because "software" patents and "frivolous" patents only intersect and neither contains the other in its entirety.

    2.) Software is hardware is software. If you can't patent software, then you shouldn't be able patent hardware either. This was settled the better part of a century ago, in case anyone was paying attention. Pretending that software is a special case that is different from hardware creates a distinction where none exists.

    3.) A minority of software patents, just like a minority of normal hardware patents, cover inventions that took substantial research and development effort that no one could reasonable claim to be "obvious". This would seem to be precisely what is supposed to be protected by patents under ideal circumstances and I can't see a reasonable argument that says these inventions should be treated differently than all other patents. Otherwise we would be in the position of allowing frivolous non-software patents and disallowing heavy-duty substantive "software" patents.

    That said, it seems to me that the biggest reason a lot of geeks don't like software patents is that it is inconvenient for them. Every rationalization that disallows "software" patents but allows other types of patents has been uniformly weak and inconsistent. If you think patents are bad, then ALL patents are bad, not just the ones you wish you didn't have to abide by.

    • Re:Contradiction (Score:5, Insightful)

      by Bruce Perens (3872) <bruce@perens.com> on Sunday August 01, 2004 @08:28PM (#9860291) Homepage Journal
      Inconvenient is an understatement. We are moving toward a point beyond which only the largest companies will be able to engage in software development. Forget about individuals doing it when the cost of defending a single patent suit is about $3 Million (American IP Law Association estimate).

      So, I'd suggest that "discriminatory" is a lot more accurate than "inconvenient".

      And yes, hardware is software these days. Which means that all would better be protected with copyright. Applying both patent and copyright to the same material is too much.

      Thanks

      Bruce

  • Moral dilemma (Score:5, Insightful)

    by r.jimenezz (737542) <rjimenezh@g[ ]l.com ['mai' in gap]> on Sunday August 01, 2004 @08:23PM (#9860268)
    From the article:

    Since we receive a bonus of $8000 per patent, if all goes well we'll share well over $150,000. And there seems no reason we can't keep this game up indefinitely. We should be able to manage around 50 a year, and this nice little earner will see the mortgage paid off in no time.

    Now I think that's interesting... This comes from a software engineer, not from the lawyer. Most developers (and presumably the one from the article too) despise this whole mess, yet this guy is being "gently persuaded" by his employer to play the game.

    I'd rather not find myself in such a situation, for it's easy to say what I am going to say without having to actually face it. But I'd like to believe that I can be part of the solution and not of the problem; that I can be brave enough to stand by my beliefs and refuse to be part of something like this and still manage to pay my bills.

  • by neil.orourke (703459) on Sunday August 01, 2004 @08:40PM (#9860348)
    ... until they are tested in court. So says the lawer at the company I work for, and who is involved in patent (not software) battles on our behalf in a few countries.

    Essentially, he says, the granting of a patent means that you were able to convince some guy in an office that your idea was new, un-obvious etc. etc. So the patent is granted.

    The fun starts when your product hits the market and someone else tries to do the same thing. Then it goes to court, and only then is the validity of your patent tested.
  • by Goonie (8651) * <(robert.merkel) (at) (benambra.org)> on Sunday August 01, 2004 @08:43PM (#9860357) Homepage
    Gittins is writing from an Australian perspective, where the debate whether the minority party should ally with minor parties in the Senate and block the FTA is getting particularly heated.

    From an American perspective, however, what you should be concerned about is the kind of things that this FTA, and subsequent ones, are going to do to lock in the current, ridiculous intellectual property regime. This applies not only to software patents, but restrictions on generic drugs, copyright terms, and so on. In the next decade or so, it's highly likely that there will be serious attempts in Congress to fix some of these issues. What will likely happen, though, is that the executive will come back with the argument "You can't do that! We'll be violating the terms of the free trade agreements we signed with Australia, Albania, and Andorra" (to pick three countries of similar importance to the United States) and the bills will quietly die.

    The EFF and other groups in the "less overbroad IP protection" crowd might do well to pay more attention to international treaties, IMO.

  • by NZheretic (23872) on Sunday August 01, 2004 @08:58PM (#9860426) Homepage Journal
    Business methord and software patents are detrimental to the software industry as a whole, but it is also one of the major driving forces to an interesting trend amongst most of the major IT vendors.

    Applying game theory to long term software industry market, for both open and proprietary vendors, based on software patents...

    1) Small software developers are unlikely to benefit from the overall balance of payments from licensing of their own and other vendors software patent portfolios, since other software vendors are just as likely to hold other software patents that the developer uses in his own products.

    2) Larger software vendors are unlikely to benefit from payments from licensing of their software patent portfolio, as per above small sofware developers plus the software vendor is likely to hold the lion's share of the sofware target market, profit from software patent licensing will be much smaller in proportion to the overall sales of the vendors own products.

    3) Third party intellectual property "holding companies", that do not actively participate in selling actual software, are the only class of organization that can benefit from licensing of their software patent portfolios. In most cases these entities have a very tenuous relationship to the ongoing development of the software methords patented

    See Patents bad but also pushing interesting trend [newsforge.com]

  • by femto (459605) on Sunday August 01, 2004 @09:09PM (#9860472) Homepage
    A second half to Gittins' article was also published a few hours ago:

    Trade deal a free kick for US software racketeers [smh.com.au]

  • by L1TH10N (716129) on Sunday August 01, 2004 @09:32PM (#9860556)

    Reading about the abuses of patents really makes my blood boil, but at the same time it is comforting to know that economists are starting to react against software patents.

    The economic papers (and probably many others) " Sequential Innovation, Patents, and Imitation [researchoninnovation.org]" and " An Empirical Look at Software Patents [researchoninnovation.org]" articulate in economic terms why software patents don't work.

    I think that most economists believe that monopolies are bad and competition is good. I think that the more the economic viewpoint like those mentioned in the papers above start to have stronger acceptance amongst economists, then these viewpoints will start to hit the main stream press such as the Sydney Morning Herald (as a main stream newspaper in Australia). Hopefully, by this point, these viewpoints would start to influence government policy.

    Geeks got on to the problem of software patents early. But the "geeky" point of view is often overlooked by governments. Economists are much more respected in government and probably can articulate an argument against software patents that probably will not be be overlooked. I'm looking from the perspective in Australia, I don't know how politics works in other parts of the world. But I hope that common sense will prevail.

    • [snip happens]
      The economic paper... An Empirical Look at Software Patents" articulate in economic terms why software patents don't work.

      I found this particularly choice;

      Legal scholars sometimes argue that patent law should treat computer programs no differently than any other invention. This paper does not address arguments about legal consistency, but instead explores the economic effects of granting software patents in the U.S. during the 1990s. Our results are difficult to reconcile with the tr

  • A Question (Score:3, Insightful)

    by Nexum (516661) on Sunday August 01, 2004 @09:40PM (#9860592)
    Ok, now I really have to ask.

    At the risk of seeming frightfully out of touch and un-733t over the last few month's I've been seeing more and more of this "One wor^H^H^H^H^H^H Another word I should really have used" kind of stuff.

    I know how it's used and roughly what it means and how to read it... but does anyone know it's origins or it's precise meaning?

    Thanks for enlightening me... I just finally had to ask.
    • Re:A Question (Score:4, Informative)

      by LighthouseJ (453757) on Sunday August 01, 2004 @10:07PM (#9860716)
      Well, back in the days of early terminal programs where, to get good terminal emulation you had to massage the terminal client into emulating as close to how a native terminal would behave and this is what happens when it's not emulated close enough.

      A backspace is the equivalent of Control-H. If you look at your ascii tables [asciitables.com] and skip the first NUL character, begin going down the line and counting off each letter of the alphabet. On H, you will land on BS (backspace). You can look at other codes and their equivalents on your own time.

      Well, in Unix, it was written that when a keyboard sent a "^H" (which was recreated by holding down Control and pressing H), that it would backspace. When you are parked in your poorly-emulated remote terminal and press backspace, it sends the ^H over the line but it's not properly formatted and the terminal program thinks ^H is what the person wanted to type as plain text.

      So some people are in a hurry, and want to send emails over their poorly-emulated remote terminal. They type, make mistakes, append ^H's that don't correct the typing mistake and then resume the email. It's just another call back to a golden age of computing, like how people still use vi... :)
  • by werdna (39029) on Sunday August 01, 2004 @09:51PM (#9860647) Journal
    This kind of thing is starting to be a hot issue down here with the US-Australia Free Trade deal about to be ratified and bring our intellectual property laws in line with Micros^D^D^D^D^D^D^D America's

    Boy, do you have this one all wrong.

    Microsoft made one of the worst lists in America to get, the list of the top 100 verdicts for last year, three times, as a losing defendant. Microsoft has been on the business end of more 8 and 9 digit patent infringement verdicts than any other enterprise in recent times.
  • by loophard (799511) on Monday August 02, 2004 @12:28AM (#9861327)
    I am personally co-author of several patents where we took competitor patents as prior-art and created new patents with claims that anticipate competitor direction. You end up just expanding the independent claims to make them novel (the part you add is the anticipatory part). Of course, you can't use the invention yourself, because you'd be infringing the competitors patent. However, the competitor cannot practice the new patent either, potentially blocking their advance. They may need to licence from you in order to advance their art. Or, trade off licencing with other patents in their portfolio/ That's how it works. It's all legit, and a good way to maintain/gain/protect a competitive advantage. You can slag patents all you want, and yes there are BIG problems in the system, but, you need to play the game to not get squashed.
  • a hidden assumption (Score:4, Informative)

    by latroM (652152) on Monday August 02, 2004 @02:48AM (#9861650) Homepage Journal
    from http://www.gnu.org/philosophy/words-to-avoid.html# IntellectualProperty

    Publishers and lawyers like to describe copyright as ``intellectual property''---a term that also includes patents, trademarks, and other more obscure areas of law. These laws have so little in common, and differ so much, that it is ill-advised to generalize about them. It is best to talk specifically about ``copyright,'' or about ``patents,'' or about ``trademarks.''

    The term ``intellectual property'' carries a hidden assumption---that the way to think about all these disparate issues is based on an analogy with physical objects, and our ideas of physical property.

    When it comes to copying, this analogy disregards the crucial difference between material objects and information: information can be copied and shared almost effortlessly, while material objects can't be. Basing your thinking on this analogy is tantamount to ignoring that difference. (Even the US legal system does not entirely accept the analogy, since it does not treat copyrights or patents like physical object property rights.)

    If you don't want to limit yourself to this way of thinking, it is best to avoid using the term ``intellectual property'' in your words and thoughts.

    ``Intellectual property'' is also an unwise generalization. The term is a catch-all that lumps together several disparate legal systems, including copyright, patents, trademarks, and others, which have very little in common. These systems of law originated separately, cover different activities, operate in different ways, and raise different public policy issues. If you learn a fact about copyright law, you would do well to assume it does not apply to patent law, since that is almost always so.

    Since these laws are so different, the term ``intellectual property'' is an invitation to simplistic thinking. It leads people to focus on the meager common aspect of these disparate laws, which is that they establish monopolies that can be bought and sold, and ignore their substance--the different restrictions they place on the public and the different consequences that result. At that broad level, you can't even see the specific public policy issues raised by copyright law, or the different issues raised by patent law, or any of the others. Thus, any opinion about ``intellectual property'' is almost surely foolish.

    If you want to think clearly about the issues raised by patents, copyrights and trademarks, or even learn what these laws require, the first step is to forget that you ever heard the term ``intellectual property'' and treat them as unrelated subjects. To give clear information and encourage clear thinking, never speak or write about ``intellectual property''; instead, present the topic as copyright, patents, or whichever specific law you are discussing.

    According to Professor Mark Lemley of the University of Texas Law School, the widespread use of term "intellectual property" is a recent fad, arising from the 1967 founding of the World Intellectual Property Organization. (See footnote 123 in his March 1997 book review, in the Texas Law Review, of Romantic Authorship and the Rhetoric of Property by James Boyle.) WIPO represents the interests of the holders of copyrights, patents and trademarks, and lobbies governments to increase their power. One WIPO treaty follows the lines of the Digital Millennium Copyright Act, which has been used to censor useful free software packages in the US.
  • As a European... (Score:4, Interesting)

    by haeger (85819) on Monday August 02, 2004 @04:47AM (#9861744)
    ...I cannot for the life of me understand why EU would think that SWPAT is a good idea. I still live in this fantasy that the politicians should serve their people and their country, and I don't see that these patents do any good to either. I mean, we're all a bunch of whiny geeks here so they don't listen to us, but surely they must see the bigger perspective. If we allow SWPAT in the EU then we will practically give away the entire IT sector to the US (and subsequently India) since 90% or so of the SWPATs that's out there are owned by large American companies.

    Why would the EU want to do that? What's the benefit? I just don't understand. Did someone wake up and think "Well, this IT thingy is too compllicated, let's just focus on agriculture instead. Let's give all IT stuff to USA, and let them figure it out."?

    .haeger

  • A simple solution (Score:4, Interesting)

    by Ignatius (6850) on Monday August 02, 2004 @07:33AM (#9861937)
    The idea of patents is to compensate innovators by temproarily restricting the freedom of all members of the jurististiction to which it applies, to take advantage of a fact (the invention), such that the original finder of that fact can make money, either by exploiting the fact itself or by charging others for the right to do so.

    (Useful) facts are very much like real estate: You can only exercise you property right by limiting the rights of others. In any free society, you need a good reason for restricting the rights of the public; in the case of patents, this is done to compensate the inventor (the original finder of the fact) and thereby spur innovation. If patents aren't used to that end (and in the case of software patents, they rarely are), then they are damaging to society.

    So what we need is a scheme, that encourages patents only if they are actually used to make money by making the benefits of the invention available to the public. This simplest way to do this is a price-dependent tax on patents.

    Whoever wants to file a patent has to put a price tag to it, for which is is willing to sell out his patent to the public domain. He is completly free by selecting this price. However, to uphold his patent, he has to pay an annual fee of, say 1%, of this buy-out price. The price can be adapeted yearly but only in a range of, say, +/- 25%. If, during the runtime of the patent, anyone pays the patent holder the buy-out price, then the patent enters the public domain immediately.

    If the patent is any good and actually used to produce goods or give away licences, 1% is a rather small amount. If its only used as a lockaway patent, to hinder innovation, protect an obsolete business model or as a weapon in court, then it is expensive, as it doesn't generate any direct revenue.

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