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."
Okay, but what's the alternative? (Score:3, Interesting)
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?
One quick way to improve the situation (Score:5, Interesting)
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!
Hmm... (Score:2, Interesting)
"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 for a few months and, even after the dotcom crash, it's still the case that after a couple of years generally there is a complete generational change in the tools, techniques and even programming languages used."
Despite my unreserved support for OSS, I can recognize a tenuous argument when I see one. Software development takes time and effort, just like the development of mechanical devices.
Money talks (Score:5, Interesting)
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.
Patents are for the rich (Score:2, Interesting)
Comment removed (Score:5, Interesting)
Re:I'll say it again.... (Score:5, Interesting)
This would avoid the common scenario where the defendant is sued out of existance even though the case has no merit!
Contradiction (Score:4, Interesting)
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:Hmm... (Score:5, Interesting)
Bruce
Re:Poster has the wrong idea (Score:1, Interesting)
Of which Microsoft is conspicuous by its absence.
Re:I'll say it again.... (Score:4, Interesting)
Re:I'll say it again.... (Score:4, Interesting)
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.
Patents are worthless... (Score:4, Interesting)
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.
What this is really about... (Score:4, Interesting)
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.
Patents are inherently bad for software industy (Score:5, Interesting)
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]
Re:Follow the lead of the anonymous author! (Score:3, Interesting)
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 hardware, and then make an additional claim of "any process that simulates the physical artifact."
Re:One quick way to improve the situation (Score:3, Interesting)
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 either need to get some investors to see them through to market or just sell out to a big fish. I must be missing something here, what's the point of patents again? To fund research with no intention of production?
Re:Follow the lead of the anonymous author! (Score:3, Interesting)
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 developers want to hit IRC and spend a night debating which ideas are going to be good ones to patent? Who will track those patents and who is going to make the decision on whether a patent is to be used in litigation? So now we're not just talking about money to create patents or even use patents but now we need money to maintain our patents. Oh and we all have to agree on how we're going to do that.
And who wants to cross-license patents with a GPL project? It seems you'd have to virtually give up your patent to avoid litigation since the GPL requirements are going to force you to free up your "IP." Under the circumstances,it might be worth the risk to blow the $2million and litigate. So unlike what currently happens in the industry the FOSS patent industry would probably always be in litigation instead of cross-licensing. At least that's what I see happening worst-case.
Re:Poster has the wrong idea (Score:3, Interesting)
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 didn't go after everyone, they specifically went after microsoft.
Anyways how do you solve this? make patents more specific not broad. Patent officers should really reject patents are worded in a way that applies to anything in that field. The law should be changed so that if a company hasn't created anything useful for the patent in 5 or so years then they can't go around sueing everyone who implements it.
Re:The alternative is no IP laws, period. (Score:4, Interesting)
I abhor software patents as much as (if not more than) the next Slashdot devotee, but we don't actually work to pay taxes.
We work to obtain scarce goods. And no matter what technology does, there will _always_ be scarce goods. Real estate. Food cooked in a certain style, available in a certain place (real estate, again). Garbage collection. Military defense.
Technology makes it possible to make an indefinite number of copies of any arbitrary pattern of bits at so close to zero marginal cost as makes no difference, but it doesn't have the same effect on other scarce goods. Without artificial scarcity in bit patterns (or in ideas that get turned into bit patterns), those bit patterns cannot be used in trade for the really scarce goods.
That's economics, but if you think that sounds in any way wishy washy, think of it as physics. It's reality that you can't avoid, no matter how hard you try.
Free software and a limitation on software patents makes sense for many reasons, but those have to do with users taking maximum economic efficiency out of that zero marginal cost, rather than pumping up a giant chokepoint on the economy like Microsoft. Bit patterns and ideas of a truly unusual level of originality, unobviousness (even in the face of a transformative technology like the Internet that makes all kinds of things suddenly obvious) and technical complexity generally should be able to be matters of economic commerce, otherwise those people creating ideas and bit patterns will ultimately fail to be able to afford real estate.
Really lame ideas. (Score:3, Interesting)
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 of the things they are for. Make an deal with the local bank. There must be a simpler way to provide a court with definitive proof without validating software patents with mindshare, effort and money.
You also forward the bogus claim:
one of the Principles of Free Software, transparency, is fundamental 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.
That's the general idea, but you might note that it does not work like that at all. Engineers can not recognize their inventions after the lawyers get thought with them and it's a wonder that a court can enforce them anymore. Patents are being used to claim ideas, not inventions, and that's a perversion. Yes, software patents are the epitome of this abuse of principles.
If you want to share your source code, just publish it GPL in the usual ways. 10 points to the first person who can show me where Savannah or Sourceforge keep tabs on submissions to be able to show the definitive proof that's the reason so many lemmings are wasting so much money on so many lawyers and government processes.
Microsoft is the world's biggest patent loser . . (Score:5, Interesting)
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.
Patents destroy rights (Score:4, Interesting)
I believe a lot of us wouldn't mind seeing patents for truly brilliant methods, if we could be assured there wouldn't be one million bad patents for every one good one.
But, just to issue *my* anti-patent rhetoric:
Imagine if our criminal system convicted 99 innocent people for every true criminal, and attempts at reform have proven ineffective. Would you continue to pursue reform, when the damage done far outweighs the good?
The same holds for our patent system. If one patent in a hundred is good, and protects the rights granted by US law, those 99 other patents infringe on *my* rights (and the rights of millions of others) to freely use my knowledge.
That is a nontrivial right. In fact, it is fundamental to freedom.
So, our current patent system is indefensible. It destroys more rights than it protects, and should probably be dismantled, since attempts at reform have failed.
Anyway, end of rhetoric, for this post.
Re:I'll say it again.... (Score:3, Interesting)
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.
Re:Economists viewpoint may effect change (Score:3, Interesting)
I found this particularly choice;
Perhaps software patents are exactly like other patents in this regard.
Maybe it's the traditional incentive theory that's in error.
-- less is better.
As a European... (Score:4, Interesting)
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."?
separate patent law for software (Score:2, Interesting)
Re:Poster has the wrong idea (Score:1, Interesting)
This is madness, this idea that the US president should take credit for every good thing that happens in his term, and be blamed for every bad thing.
Want to blame Clinton for the DMCA? Hang on a second - when he signed that into law, he went along with the wishes of both major political parties. That's what the leader of a democracy is supposed to do; he'd have been failing his duty if he'd opposed it. Debate and opposition are the job of the people's representatives, and I seem to recall a clear majority of those supporting it.
Want to blame Bush for the disastrous invasion of Iraq? Hang on a second - when he ordered the invasion, he did so with the full support of Congress. Did he lie to us? Perhaps, but it's more likely that he was misled by inadequate intelligence. The thing is that the majority of the American people kind of wanted him to order that invasion; to turn round and blame the leader of a democracy for following the wishes of the demos is kind of silly, don't you think?
POTUS is a figurehead, not a deity; he is not omniscient or omnipotent, and his job should be to represent the wishes of the American people to the world, not to push his own agenda.
A simple solution (Score:4, Interesting)
(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.
PLEASE make patents more expensive! (Score:3, Interesting)
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 patents from good patents.
Re:I have no recollection with that (Score:3, Interesting)
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 being a person -- a complete contradiction.
So, if a corporation commits a crime for which the shareholders aren't responsible, make the corporation, as a virtual person, serve a virtual sentence. A crime punishible by five years in prison? Make the corporation pay all profits to the victims and the government for five years, plus restitution. That'd clean up their act considerably.