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An Insider's View of Software Patents 405

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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  • ^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 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.)

  • 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

  • Re:^H^H (Score:3, Informative)

    by manabadman ( 589984 ) on Sunday August 01, 2004 @08:18PM (#9860240)

    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.

  • by mikael ( 484 ) on Sunday August 01, 2004 @08:29PM (#9860296)
    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".
  • Re:^H^H (Score:3, Informative)

    by hey ( 83763 ) on Sunday August 01, 2004 @08:31PM (#9860307) Journal
    Stands for Stop. Hit control-Q to resume.
  • 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.

  • 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 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 Anonymous Coward on Sunday August 01, 2004 @09:47PM (#9860619)

    The question is where do you publish it so it becomes prior art that the USPTO will consider when examining a patent.

    No it isn't. The question is where to publish so the particularly the date of such publication becomes an indubitable matter of public record in a form admissible to a court as evidence.

    Whether the USPTO is aware of this publication (and whether any patent is subsequently granted) would seem to be largely irrelevant.

  • 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 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

  • Re:Hmm... (Score:3, Informative)

    by LordLucless ( 582312 ) on Sunday August 01, 2004 @10:45PM (#9860866)
    What you're talking about is "marketing" not "manufacture" or "distribution". If you manage to create a new super-algorithm, how is BigCorp supposed to figure it out just by purchasing a binary copy of your program? If the algorithm is obvious enough that a look at the working program is sufficient to show how it works, then it shouldn't qualify for a patent in the first place. If BigCorp downloads your program, looks at it, and creates their own algorithm that does a similar thing in a different way, then that wouldn't be covered by your patent anyway.

    In the mean time, all the BigCorps of the real world have patented obvious algorithms all over the place, so if an inventor comes up with something new, he'll have to cross-license his patent to them anyway to avoid being sued into bankruptcy for violating their "summation of two integral numbers via electronic manipulation logic gates" patents.
  • by hsoom ( 680862 ) on Sunday August 01, 2004 @11:00PM (#9860921)
    The Sydney Morning Herald does not require registration to read articles. When you got to the page that says "Soon you will need to register to read this article" did you notice the paragraph underneath that says "We will be asking all readers to register for full access to The Sydney Morning Herald website in the near future (emphasis mine)." So, while your complaint may be merited soon, at the moment you can simply click the link down the bottom of the page that says "Register later and continue to your Article". It takes you straight to the article!

    Also I think you'd have a hard time finding an alternative site carrying the same story because Ross Gittins, the author, is an opinion writer for Fairfax, and this article is not news but an opinion piece. I doubt this article would show up anywhere but in Fairfax owned newspapers (i.e. Sydney Morning Herald, The Age, etc.) all of which have the "soon you will need to be registered to read this article."
  • by wrecked ( 681366 ) on Sunday August 01, 2004 @11:01PM (#9860922)
    Just for the record, the Corporation was also made into a documentary [imdb.com], by the same director of Manufacturing Consent: Noam Chomsky and the Media [imdb.com] (both are National Film Board of Canada projects).

    The Corporation has been a relative success here in Canada.

    I took a (Canadian) Constitutional Law course with Joel Bakan [law.ubc.ca], the author of the Corporation, at the University of British Columbia. He is one of most interesting professors that I ever had.

  • 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.
  • by danila ( 69889 ) on Monday August 02, 2004 @06:00AM (#9861836) Homepage
    There is an important distinction between financial liability and legal liability. Shareholders should be able to limit the former, but not the latter. The point of corporations should be to try risky ideas and implement them in business. If the business fails, shareholders don't lose anything other than the money they invested. But legal liability should not be limited. If the business idea involves abusing children in Africa (e.g. diamond mines), the shareholders and managers should be responsible for it from the day one.
  • Wrong Figures.... (Score:2, Informative)

    by zungu ( 588387 ) on Monday August 02, 2004 @08:21AM (#9862100) Journal
    A patent does not cost $100,000 to file. The maximum a usual patent application will cost is $15,000 for the full process till it is issued. No way is the $1 million in legal fees number is correct. Further, this article seems to think that patents apply only to mechanical inventions. That leaves out half a universe of electrical, electronics and related technology. Not to mention chemical, biotech and pharmaceuticals. I can understand the slashdot crowd jumping with glee at such patent bashing, but the facts ought to be correct.

So you think that money is the root of all evil. Have you ever asked what is the root of money? -- Ayn Rand

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