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Software Patents Compared to Hard Patents 134

Posted by Zonk
from the different-flavours-of-patent dept.
Arie writes "The Slate discusses the obvious differences between patenting an algorithm and a drug. The article introduces the Fence test, which basically says that if you can physically protect your property, you have a case patenting it. In addition, it claims that the burden on a programmer identifying whether he is infringing on a patent or not involves excessive research burden, essentially to the inherent lack of physical boundaries. Obviously the article starts off with mentioning the patent dispute between RIM and NTL."
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Software Patents Compared to Hard Patents

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  • by Toby The Economist (811138) on Tuesday February 07, 2006 @06:31PM (#14664128)
    The original and valid purpose of a patent is to enable people who make investments in research to be compensated for the risk they take.

    This - investment, risk, compensation - is the issue.

    Whether or not a fence goes around the concept patented is utterly irrelevent.

    If a fence test was implemented, all investment into non-physical research would be discouraged.

    • The original intent for granting patents was to encourage people to invent things. This has nothing to do with protection of investments. All investments contain risk. If you invest in something that isn't patentable or is patentable but not profitable, then that's just tough. Welcome to captialism and the free market.
      • The original intent for granting patents was to encourage people to invent things. This has nothing to do with protection of investments.

        Tell that to all of the companies with R&D budgets in excess of $1 million per year.

        Invention generally arises from one of two circumstances:

        • Professional, for-profit research to find a targeted solution to a particular problem, and to create new products and services based on it; and
        • Hobbyist or academic research that explores the details of a problem or phenome
    • by Anonymous Coward
      "The original and valid purpose of a patent is to enable people who make investments in research to be compensated for the risk they take."

      Wrong. Government should not, and does not, play a role in determining compensation for the risks taken by individuals or corporations.

      Government does, however, play a legitimate role in establishing policies that serve the public good. In the case of patents, the public good is served by encouraging the publication of innovations that might otherwise be kept secret.
    • by kfg (145172) on Tuesday February 07, 2006 @06:46PM (#14664268)
      The original and valid purpose of a patent is to enable people who make investments in research to be compensated for the risk they take.

      Well, no, not exactly. People already made investments in research and were commercially compensated for it before patents.

      The original and valid purpose of a patent is to force them to reveal their research to the public in order to gain government protection of it.

      Whether or not a fence goes around the concept patented is utterly irrelevent.

      Actually, this is exactly the test applied by the founder of the American patent system and its first examiner; Thomas Jefferson. For things which you can't put a fence around there is copyright.

      Patents are not ideas, they are for things.

      KFG
      • by AeroIllini (726211) <aeroillini.gmail@com> on Tuesday February 07, 2006 @07:35PM (#14664693)
        Patents are not [for] ideas, they are for things.

        Well said, sir.

        I think the fence analogy is rather confusing, however. (No offense to Jefferson, of course.) I prefer to draw the line between ideas and implimentations. Without this distinction, there would be no such thing as a competing product.

        For example, let's say you think of a novel new way to wake people up in the morning; something that's never been marketed before, like pouring water on your head. So you take this idea and distill it down into an implimentation called the AlarmWaker3000, which you patent. Now your good friend down the street has this same idea, and creates himself the WakeUp Machine, which he patents. But because the AlarmWaker3000 used a bucket and a piece of string tied to the hands of a clock, and the WakeUp Machine uses a hose crimped by a weight that gets lighter over time, neither one of you are infringing on each other's patents. You didn't patent "A method for waking someone up by splashing their face with cold water," you patented the "AlarmWaker3000" and the "WakeUp Machine".

        The question of infringement on a patent usually boils down to the similarity between the two devices. Two companies can build, and patent, two different motherboard designs with exactly the same functionality: onboard video, sound, ethernet, whatever. But as long as the circuits are dissimilar enough (which is up to a judge to decide) then the implimentations are different and they don't infringe.

        The problem with software patents is that the the line between ideas and implimentations has been blurred. Amazon patents their code for purchasing things with a single mouse click, once all your information is on file and you are logged in. Suddenly, anyone creating a shopping system that allows registered customers who are logged in to purchase things with a single mouse click is infringing on the patent, even if their implimentation is different. These companies are trying to use the patent system to enforce artifical monopolies on ideas instead of implimentations, and effectively cut out the competition. The truly troubling part is that the Patent Office, and lots of patent courts settling disputes around the country, seem to be going along with it.

        Maybe the fault lies with an overworked Patent Office staff; maybe it lies with a culture that irrationally rewards new technologies. I just don't know.
        • by kfg (145172) on Tuesday February 07, 2006 @07:52PM (#14664879)
          The problem with software patents is that the the line between ideas and implimentations has been blurred.

          Actually, I don't like the fence analogy either and it wasn't 'exactly' the model Jefferson used.

          The true test is whether the research can be transmitted by speech/print.

          k=1/2mv^2, E=mc^2, "Now is the winter of our discontent. . .," as opposed to, say, a cotton gin.

          If you can recite the research than it falls under those laws intended to protect speech, not things. As you say, ideas as opposed to implimentations.

          It is, unfortunately, computers that have blurred the line between the two with the decision that since the physical device impliments the idea that it is somehow itself the device.

          This is the sort of bullcrap we get when people cannot differentiate between the physical and logical levels. At its extreme I have seen plans for a piece of furniture that has no patent protection on it try to apply EULA copyright restrictions to your ablility to impliment the plans and claim a license fee for every instance of the furniture you build.

          Oh, yeah, and a website whose legal page actually begins with "By viewing you agree to these policies . . ." which include a claimed restriction on reverse engineering their nonpatentable products.

          It's gone totally crazy out there.

          KFG
          • The true test is whether the research can be transmitted by speech/print.

            What an odd concept. Virtually all chemical research is described by "speech/print." You don't document a chemical engineering technique with pictograms or multimedia; you show it by describing, in words and letters, the steps.

            In fact, your distinction would relegate every single patented invention exclusively to the land of copyright. You see, since 1952, patentees have been required to describe their invention in claim language

        • The question of infringement on a patent usually boils down to the similarity between the two devices.

          That's completely wrong. The question of infringement boils down to a comparison of the claims - of the bare, essential, conceptual elements of the patented invention - and the embodiment accused of infringing.

          The Court of Appeals for the Federal Circuit has had to correct this misconception dozens of times. Many accused infringers want to point to some feature of the patentee's product in order to mak

        • Let me just note for the record here, that you are completely wrong. To be more specific, this may be how you WISH the patent system works, but it most definitely is NOT how it has worked for over 200 years.

          Copyright is all about protecting particular expressions of ideas. Patent law is all about actually protecting ideas.

          You can't obtain a copyright in, for instance, the idea of a certain plot, or a certain genre of song, or any other such 'idea.' Copyrighted works must be fixed, and must be a particula
      • Patents are not ideas, they are for things.

        That's completely wrong. The subject of any patent, and the core protected aspect, is an inventive and novel concept. A physical object may incorporate that concept, but even then it is not the invention - it is the "embodiment" of the invention. It is a manifestiation of the inventive concept that the patent actually addresses.

        This is evident in the fact that every patent has a difficult-to-ascertain quality called "breadth" - i.e., how broadly does the inve

        • That's completely wrong. The subject of any patent, and the core protected aspect, is an inventive and novel concept.

          For which a working physical model can be submitted.

          F=ma cannot be patented because it is a "pure" idea. If I tell it to you you walk away with the novel concept in its entirety and can likewise transmit to another.

          A circuit board may have have a novel concept behind it, but it is the board that is patented. Something I can actually steal and physically copy. I am not allowed to steal or make
          • For which a working physical model can be submitted.

            What "working physical model" do you expect someone to submit for a process of treating cancer by using a particular drug? Or for a complex chemical engineering technique, or a process (and composition!) of uranium enrichment, or a nuclear weapon, or a process of identifying particularly useful genes... All patentable - yet all incompatible (hopefully) with the idea of a "working physical model."

            - David Stein

            • What "working physical model" do you expect someone to submit for a process of treating cancer by using a particular drug?

              None.

              Or for a complex chemical engineering technique. . .

              None.

              or a process (and composition!) of uranium enrichment. . .

              None.

              or a nuclear weapon

              That one's pretty easy. I think, perhaps, you are confusing model with identity.

              or a process of identifying particularly useful genes

              None.

              all incompatible (hopefully) with the idea of a "working physical model."

              Exactly, because they are all (excl
              • That one's pretty easy. I think, perhaps, you are confusing model with identity.

                But by your words, it must be a "working model" of the nuclear weapon. A non-working model wouldn't suffice. Your words, not mine.

                Exactly, because they are all (excluding the nuclear weapon) logical contructs, not physical constructs. Traditionally trade secret territory, not patent territory.

                Cancer drugs are not, and never have been, trade secret territory. The FDA would never approve a cancer drug (or the process of us

                • But by your words, it must be a "working model" of the nuclear weapon. A non-working model wouldn't suffice. Your words, not mine.

                  A small nuclear weapon would not be a working model of a nuclear weapon. It would be a nuclear weapon. A model is not the device, it is an analog of the device.

                  Cancer drugs are not, and never have been, trade secret territory.

                  You did not specify a cancer drug. You specified a process for using it. I specified that the drug itself would be submitable. It is physical, not logical.

                  C
                  • A model is not the device, it is an analog of the device.

                    Hey, you're the one who demanded that the models must be "working." I'm just holding you to your own proffered requirements.

                    You did not specify a cancer drug. You specified a process for using it. I specified that the drug itself would be submitable. It is physical, not logical. Cancer drugs are not, and never have been, trade secret territory.

                    So now you're suggesting that the cancer drug would and should be well-known, but that the "method of

                    • (2) having the patient swallow it. How, exactly, do you foresee trade secret being useful in this context?

                      How exactly do you plan to patent that?

                      >>Patents were invented to create a temporary monopoly on making "stuff."

                      >Wrong. Take a look at the first clause of our patent law, circa 1952:

                      "35 USC 101. Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the condition
                    • Patents were not invented in 1952.

                      Well, if you're looking at the "big picture" of patents in history - patents were not invented specifically to spur "invention," either. The Venetian and English patent systems were designed to promote the rate of industrial development in a home country, but those new technologies could be claimed for a patent even if the patentee had only imported his observations of technologies in other countries. Realistically, however, they were used (1) to protect the guild system

                • by kfg (145172)
                  Please point me to the patent for a functional nuclear weapon.

                  KFG
        • > The patent system has long protected "processes,"

          Nope. What you patent is "a device implementing this idea" and then you describe the device in depth in such a broad (and yet oddly specific) way that can be interpreted to mean "all devices implementing this algorithm including computers" in enough courts. This is a bad hack on the legal system thought up by AT&T in the 70's when they wanted to patent Huffmann codes. The mathematicians who figured it out didn't think it should be possible to pate
          • Nope. What you patent is "a device implementing this idea"...

            35 USC 101: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."

            In case you missed it, "process" is the first one.

            This has been the wording of the statute since 1952. And process patents long predate 1952: in this change, the patent law only affirmed the long

            • Question: If someone invents a machine that produces a new sound by carrying out some process with its internal components and I come along and record the machine and then sell copies of the recording on the Ebay, would you say that I am infringing the patent?
              • Question: If someone invents a machine that produces a new sound by carrying out some process with its internal components and I come along and record the machine and then sell copies of the recording on the Ebay, would you say that I am infringing the patent?

                You're mixing up patent law and copyright law.

                "Sound" generally isn't patentable. It's not a machine, a manufacture, a composition of matter, or a process. I can think of hypotheticals where it might be - e.g., a "signal" claim, where the sound is

                • More concrete example, there are patents on music boxes. If someone patents a music box and I place a microphone next to it and record the output and sell CD's on Ebay, have I violated the patent on the music box?
                  • If someone patents a music box and I place a microphone next to it and record the output and sell CD's on Ebay, have I violated the patent on the music box?

                    You're leaving out some key details about the music box. Did you make it, or buy it from someone who didn't have the right to make it? Is it being operated by you, or by someone who's not authorized to operate it, or by the patentee or one of his licensees? Are you complicit with an unauthorized manufacturer/operator in the operation of the music box?

                    • I was assuming that you bought tbe music box from the inventor and was allowed to play it. That wasn't the issue. The issue is the whole hardware=software thing.

                      I realize that there is a big difference between patent law and copyright law, and my example was intentionally stupid and making an obvious mistake according to my understanding of patents and copyright. I admit that. The reason I made the ridiculous example is that one of the major reasons people use to justify software patents is that hardware pa
                    • The reason I made the ridiculous example is that one of the major reasons people use to justify software patents is that hardware patents are ok (which I agree with) and that software and hardware are interchangeable so therefore software patents are ok and should be treated the same as hardware under patent law.

                      I understand and appreciate the purpose of your analogy. We don't usually see such reasoned discussion here at Slashdot, so I appreciate it.

                      And now, let me destroy it. ;)

                      Your analogy is unwor

      • Patents are not ideas, they are for things.

        Wrong. Completely and utterly wrong. Laws about ownership are for things. Patents always protect ideas. For instance, an electronic circuit is not a thing, it's an idea, just like an algorithm. Circuits have always been patentable. I really fail to see why algorithms should not be patentable, so long as they are novel and nonobvious. Can you explain why it should be possible to patent an idea for a better monkey wrench, but not an idea for a better algorithm
        • For instance, an electronic circuit is not a thing, it's an idea, just like an algorithm.

          Care to explain?

          Can you explain why it should be possible to patent an idea for a better monkey wrench, but not an idea for a better algorithm?

          Patents don't exist in a state of nature; they were created because they bring a net benefit to society. For a variety of reasons, patents on algorithms impede progress and economic growth; they do not produce a net benefit to society, so they should not be granted.

          • Care to explain?

            OK, I might not have been too clear. Let's say you design a new type of amplifier that has better performance than an existing one. It's certainly patentable, and it's just an idea. Just because you might implement it with transistors instead of bits doesn't mean it's substantially different.

            For a variety of reasons, patents on algorithms impede progress and economic growth; they do not produce a net benefit to society, so they should not be granted.

            You have not presented a shred of evide
            • Care to explain?

              OK, I might not have been too clear. Let's say you design a new type of amplifier that has better performance than an existing one. It's certainly patentable, and it's just an idea. Just because you might implement it with transistors instead of bits doesn't mean it's substantially different.

              I'm still confused about how something that I can hold in my hand is an idea, not a physical object.

              For a variety of reasons, patents on algorithms impede progress and economic growth; they do n

              • I'm still confused about how something that I can hold in my hand is an idea, not a physical object.

                You can hold a CD in your hand. Does that make software a physical object?

                Algorithms, being nonphysical, are able to be copied much more quickly and at much lower cost than mechanical gadgets. This has led to a computer software industry that is racing forward at incredible speed.

                I fail to see why algorithms are necessarily easier or faster to copy than mechanical gadgets. The process of designing a piece
                • I'm still confused about how something that I can hold in my hand is an idea, not a physical object.

                  You can hold a CD in your hand. Does that make software a physical object?

                  No, but it makes that CD a physical object. I can touch an electronic circuit with a stick. It's a physical object.

                  I fail to see why algorithms are necessarily easier or faster to copy than mechanical gadgets.

                  Algorithms can be stored in electronic form. Things stored electronically are necessarily easier and faster to copy th

      • Fencing (Score:2, Interesting)

        by chub_mackerel (911522)

        Actually, this is exactly the test applied by the founder of the American patent system and its first examiner; Thomas Jefferson. For things which you can't put a fence around there is copyright.

        While TFA uses the term "fence" to denote clear, definable boundaries, there's another interpretation that helps explain the essence of patent law:

        The underlying purpose of the patent laws is to encourage the sharing of useful ideas. In order to get a patent you must publicly disclose how your invention wor

      • People already made investments in research and were commercially compensated for it before patents.

        The original and valid purpose of a patent is to force them to reveal their research to the public in order to gain government protection of it.

        You know, I've been complaining about software patents for years, but I don't think I ever totally understood the argument until now. Somebody (I think it was either RMS or Bruce Schneier) said that even patents like RSA shouldn't have been granted, but I never

        • The modern patent system was devised to deal with a very particular problem. Take the varnish used by Stradivari on his violins. Because there was no legal protection for the formula in order the maintain a competitive commercial advantage he had to keep it secret.

          And when he died, so did the formula.

          Inventions were being made at a tremendous rate because there was good money to be had by having a monopoly on an invention, even without government protection. But these inventions were all being lost to human
    • I might be mistaken, but IMO the original purpose of our patent system is to make innovation public. Since nobody in his right mind would do this for free there's a reward in the form of a monopoly for a limited period of time.

      But if you (as a fictive company) prefer to keep your success private you can stick to trade secrets...

      It's not about those who are paying, but those who have the idea (at least that's how it was intended).
    • I agree in part with most of what you say, and patents serve an important role in the initial venture of any capital product. Our nation's history is full of such examples, like the Cotton Gin.

      However, when it comes to software patents; it's a mess and unmanageable at a concept level. There are far far too many finite bits of software concepts (algorithms across the board) which are unique, but completely worthless without some mechanical application of it.

      Much like the article cites with the patented

    • If a fence test was implemented, all investment into non-physical research would be discouraged.

      Yes, I agree this fence test is not well thought out. Take for instance a patent on a computer chip. This would pass the "fence test" because you can put a fence around a computer chip. But the underlying idea that you patent might very well be a VHDL algorithm. Why would this algorithm be patentable but not a Java program? If you want to take it a step further, think about a specification for an advanced brid
      • If you do, then you agree with the concept of patents. If you don't, then just ban them all. Of course, this would not be a very logical system since no one would be allowed to profit from his/her ingenuity.

        Of course people would be "allowed to profit" from ingenuity. RIM have employed every bit as much ingenuity in creating an actual product as any patent holder over the concept of a wireless email device has done. They're not even accused of having taken the idea from the patent archives. They have profit
        • You must not have read my post. What I was saying is, if you ban patents altogether that would make it impossible for someone to profit from his/her ingenuity. The RIMM case is a different story, and I don't know all the facts about it. It's possible that there are injustices in that case. I really couldn't tell you. But we don't need a fence test to disallow patents for non physical objects. Look at it this way, if we did have a fence test would RIMM have ever formed? It's possible no one would be willing
          • What I was saying is, if you ban patents altogether that would make it impossible for someone to profit from his/her ingenuity. The RIMM case is a different story, and I don't know all the facts about it.

            It is one case in which a company, Research in Motion, has profited from their ingenuity without relying on patents. That is by no means unusual, but it is one very visible case. The claim that it would be impossible to profit from ingenuity in the absence of patents is flat out untrue.

            Whether patents give
            • Ok, I see your point. Maybe it's a little extreme to say that it would be impossible to profit without patents. It would certainly be easier for copy cats who do nothing creative to profit in a system without patents. For instance in China, people sell DVDs for under $1. These salesmen are certainly a group of people who have profited from the lack of intellectual property rights in China. I guess it comes down to what kind of behavior you want to encourage. If you want to encourage inteligent ideas like Go
            • I know people who work for RIM. If you think that RIM got to where it was without using the patent system, then you are badly mistaken. RIM holds many patents, and offers bonuses to employees who come up with ideas that they eventually patent.
    • If a fence test was implemented, all investment into non-physical research would be discouraged.

      Wrong!

      I seem to recall a lot of non-physical research in computers before software patents were allowed.

      Just look up any conference proceedings that dates back a while, and enjoy! Look ma, no patents!!!

      • I seem to recall a lot of non-physical research in computers before software patents were allowed.

        You seem to have misread the post to which you're responding. That post didn't argue that physical research would stop - only that it would be discouraged. Conversely, patents were never envisioned as an essential requirement of invention - only as an incentive. So the question is not whether or not software was developed prior to software patents - only whether or not its pace was quicker or slower.

        - Davi

    • AFAIK, the original purpose of patents, In the US, was To promote the Progress of Science and useful Arts [usconstitution.net]

      • Maybe he's thinking about the proposed European constitution where intellectual property is a goal in itself. The EU constitution just says: "Intellectual property shall be protected" (Art II-77-2) [eu.int]. No ifs, no buts.

        Obviously, the drafters of the EU constitution wanted to avoid the "errors" of their US peers, which "inadvertedly" gave too much liberties to the populace, and not enough to honest businessmen...

    • The original and valid purpose of a patent is to enable people who make investments in research to be compensated for the risk they take.

      Not at all. That's the theoretical mechanism for the *actual* goal of patents: to provide for the progress in useful arts and sciences.

      The profit motive can be a great incentive, but this is almost a poster child example of how easily it tends to distract people and make them confused about means and ends.
    • The original and valid purpose of a patent is to enable people who make investments in research to be compensated for the risk they take.

      NO.

      The original purpose of a patent is to encourage people to invent things which better society as a whole, by offering them a temporary monopoly over their invention in return for its eventual release to the Public Domain for the benefit of everyone. If an invention is any good, it will recoup its development costs and maybe make a little profit but that is a side-

  • And they are protected by an electronic fence.
  • First dupe? (Score:1, Redundant)

    by Otter (3800)
    Stupid article anyway, but Taco had it this morning [slashdot.org].
  • by Anonymous Coward on Tuesday February 07, 2006 @06:38PM (#14664191)
    I'll bet Carmen Electra could turn a soft patent into a hard patent if she held it in her hands.
  • by msauve (701917) on Tuesday February 07, 2006 @06:40PM (#14664202)
    is to be "things you can physically protect," how does that jive with the fact that completely independent discovery/invention can run afoul of existing utility patents?

    It seems to me that the most basic problem with the patent system is that patents can be written in language which no one, even if "skilled in the art" (as is supposed to be the case, but obviously isn't) can clearly understand unambiguously. That causes at least two problems - patent examiners are left befuddled, leading to undeserved patents issued. Secondly, and even more importantly, since patents are supposed to force disclosure to benefit the public (after the patent term expires), having a bunch of claims buried in obfuscating language defeats the purpose.

    • So if the boundary for patent legitimacy is to be "things you can physically protect," how does that jive with the fact that completely independent discovery/invention can run afoul of existing utility patents?

      How are the two related at all? I can touch things like car parts, but how does that have anything to do with who invented them?

      The fact of the matter is that at the present time, patents that are applied to software really still apply to tangible products -- things like a CD-ROM (tape, hard d

      • Well, it's not the code, per se, that's protected; it's really executing the code on some sort of data processing system that's protected. IANAL, but I believe that if I sell (or "license" as it's usually legally done) you some code that infringes some one else's software patent, then I can still get nicked under the doctrine of "contributory infringement", so it amounts to the same thing.
        • Well, it's not the code, per se, that's protected; it's really executing the code on some sort of data processing system that's protected.

          Or the method of operating the data processing system (using the code) -- which sounds like the same thing, but turns out (from a legal viewpoint) to be somewhat different. An apparatus claim covers an actual phsyical implementation, where a method claim covers its operation. There are legal limitations on how each type of claim can be enforced.

          A method claim can

    • I think you mean jibe.
  • That way, Microsoft will be the next logical target (think of all those wireless-enabled laptops with Outlook Express preinstalled by default)!

    What delicious irony! Microsoft sued for patent violation (or do you suppose they'll just settle, the way they did when SCO alleged Microsoft violation of their IP?)! Of course it's happened before, but still . . .

    Sooner or later, USPTO is going to get caught in a self-contradictory or paradoxical situation; unfortunately, USPTO won't disappear in a flash of gam

    • I'm also hoping that NTP wins this one. One of the best ways to get a bad law changed is to enforce it. If the big boys who own our government are forced to start dealing with the consequnces of the laws thay have bought, they will eventually pay to get those laws changed.

  • In the news.. (Score:4, Insightful)

    by db32 (862117) on Tuesday February 07, 2006 @06:46PM (#14664262) Journal
    Today slashdotters were shocked when another tech writer repeated the idea that software patents are bad in yet another way. I think most people here, and throughout the industry, already know the multitude of problems with software patents. I don't think the problem is convincing people on the working side of the industry that they are bad. The problem is convincing the people profiting from software patents that they are bad. I would be interested in seeing industry leaders that can actually influence the decisions, or some politician types with the power speak out against software patents, but seeing yet another tech person do it is just getting redundant. You have to convince people that really like their money, why they shouldn't make money the way they are now. Until things get so bad that the top starts feeling the pain I don't things are going to get much better. Melancholy Elephants [baen.com] is an excellent short story by Spider Robinson about the end game of this situation we have these days. (It isn't terribly long, and it really is a good read) Enjoy!
    • - Risking offtopic rating -

      Thanks for posting the link to Spider Robison's Melancholy Elephants. It is a great read and something that legislators should have rammed into their brains!

    • The problem is convincing the people profiting from software patents that they are bad. Not quite. While this would certianly aid in the fight, it is probably not possible to convince these people that patent trolling, which may net them millions, is bad. The people you need to convince are the legislators. It is going to come down to legislation to fix this problem, not convincing patent trolls that they are immoral.
      • I kind of include legislators in those that profit from software patents. Sure they may not be the patent holders, and the ones directly profiting. But you can bet your ass that the ones raking in the big money with the patents are shelling out money to lobbyists, special interest groups, and campaign funds, etc. So I consider them in the same group, even if their profiting isn't quite so direct. Stopping software patents would stop the funds from rolling in to them to keep them quiet on the issue.
  • QED (Score:3, Funny)

    by ObsessiveMathsFreak (773371) <obsessivemathsfreakNO@SPAMeircom.net> on Tuesday February 07, 2006 @06:47PM (#14664270) Homepage Journal
    Mathematical algorithms cannot be patented.

    All Software is mathematical algorithms.

    Therefore, software cannot be patented.

    The Slate can shove it.
    • Re:QED (Score:5, Interesting)

      by Intron (870560) on Tuesday February 07, 2006 @07:18PM (#14664581)
      Would that this were so. Unfortunately, a graphics company I worked for got hit by Cadtrak's patent on the XOR operation [uspto.gov] back in the day. This is a hardware patent based on the obvious fact that negating a value twice returns the original value. The inventor applied this to drawing and erasing lines on a screen and then sold the patent to Cadtrak who vigorously licensed it.

      Its a good example of applying an obvious concept to a new application. Every TV set ever made uses an XOR to add and erase the HSync signal in the VSync, but that isn't drawing a line, so it doesn't count as prior art. Thank you, USPTO.
  • My unique algorithm prefix enables the extraction of data as contained within a one or multi dimensional data storage array that may or may not be indexed by key values of a primary or foreign nature.

    I, hereby, charge a $1 licensing fee per instance of my patented algorithm used in all commercial or commercially viable applications.

    - smarta**geekgrrl
  • From the article:

    They want to fix the PTO to ensure that only the best, truly novel inventions get a patent...

    Who decides which inventions are the best and truly novel? To note two inventions mentioned in the article, the Blackberry may be great for on-the-road execs, but it doesn't mean squat to my neighbor-lady. The cat exerciser may be great for my neighbor-lady, but the Blackberry won't do her any good.

    I would assume that "they" refers to the big companies who want to get "their" patents appro
  • The concept of software patents makes sense, it's just that the PTO has been way too lenient in applying the definition of novelty. I believe that in order for an invention to meet the standard of novelty, it must be "nonobvious to one skilled in the art".

    Many of the points in the article were really stupid.

    The analogy about fences protecting pieces of real estate made no sense at all -- putting a fence around your land hasn't enabled anyone to patent their piece of property! Furthermore I could do a

    • by NotZed (19455)
      The concept of patents full-stop doesn't make sense.

      It's an out-dated concept which only serves large corporations, and even then, not in a particularly effective way. It reduces information sharing, which means it increases the cost of innovation - which clearly causes harm to the greater good.

      • It's an out-dated concept which only serves large corporations, and even then, not in a particularly effective way.

        Actually patents were originally implemented to protect the little guys from the large corporations. By patenting something you were able to publicly disclose your inventions saying "this is my idea," and not have any disputes about who invented what or when. First in, best dressed.

        It's not patents which are broken, it's the f**king lawyers, their nit-picking, their loophole-finding and t

      • Re:Wrong (Score:2, Insightful)

        by Ekarderif (941116)
        Actually, the point of the patent was to increase information sharing. A patented product (at least in the US) must disclose all the steps necessary to create the end result; the owner then owns the exact method for a few years (which he is capable of doing anything himself but anyone who uses his method must receive his permission). This was implemented to counter trade secrets (a la Coca-Cola) by providing incentive (exclusive rights for a short period of time) to those who open up their innovations; reve
    • The analogy about fences protecting pieces of real estate made no sense at all -- putting a fence around your land hasn't enabled anyone to patent their piece of property!

      You're reading too deep into the analogy. As another commenter already pointed out, the idea is that if you can't build a fence around it, it's not patentable. Nobody is talking about patenting property.

      Many other disciplines, including material science, chemical process design, and the article's own pet area of molecular design itse

    • In a more fundamental sense, Computer Science is a branch of Mathematics - number theory in particular.

      Computer Science may be a branch of mathematics, but software development is a lot more complicated than that. That's like saying pottery is a branch of chemistry, because it's just working with materials that are designed to change their physical structure when you bake them in a kiln. Science only provides the tools, in both these cases.
  • While I'm no economist, whouln't everyones life be easier if there were no patents but everything you buy would have, say, a 2% extra tax which would be then distributed amond the developping companies according to the marketshare of their product or products based upon them? This would be received by the company for, say, 10 years since the product is sold...
    • Here is an example from the chemical industry, which I am a member of. In chemistry, a vastly disproportionate share of R&D goes to high-value added, low-volume products. However, most of the revenue and profit comes from low-tech, high volume products. For example, the major petro companies are often listed as among the top chemical companies if you use revenue as your only criteria. Why? Because they distill a gigantic amount of raw chemicals out of petroleum before the send the rest to be burned
  • Patentability 101 (Score:3, Informative)

    by Anonymous Coward on Tuesday February 07, 2006 @07:27PM (#14664641)
    Here's a quote from wikipedia on 'patentability':

    Patent laws usually require that, in order for an invention to be patentable,

    * it must be of patentable subject matter, ie a kind of subject-matter that is eligible for patent protection,
    * be novel,
    * be non-obvious (in United States patent law) or involve an inventive step (in European patent law);
    * be useful (in U.S. patent law) or be susceptible of industrial application (in European patent law).
    [* see below for formal conditions such as 'sufficiency of disclosure')]

    Usually the term "patentability" only refers to "substantive" conditions, and does not refer to formal conditions such as the "sufficiency of disclosure", the "unity of invention" or the "best mode requirement".

    Under United States patent law, inventorship is also regarded as a patentability criterion.

    --source: http://en.wikipedia.org/wiki/Patentability [wikipedia.org]
  • by argoff (142580) on Tuesday February 07, 2006 @07:55PM (#14664911)
    As society enters the information age, I think that any type of controll over information will be lost or change will be forced. So while I think that software patents must go first, I think hardware patents are by far more evil.

    This is becuase software patents are about controlling information, but hardware patnets are about physical controll. To controll information often requires BS and deception, but to controll physically often requires physical coercion and violence.

    Just as the false property of slavery was destined to end in a violent civil war as those who "owned" slaves lost controll, physical patents brought to their logical conclusion will result in the violent death of billions as society enters into the replication age and physical creation becomes more and more imposible to controll for the sake of monopolizing profit. In some ways we are already seeing a warm up. Millions in africa die of AIDS because access to generics are forbidden, millions of elderly are strongly pressured into using drugs which may lock in markets, but have all sorts of strange hidden side effects because the natural alternatives can't be patented. Safety devices on cars don't get installed causing 1000s of unneded deaths per year because other auto companies own the patent and won't let it be used. Billions and billions of incompatable parts and pieces to appliances that have no need to be incompatable except for patents. (and billions of uneeded enviromental waste because of it). The examples go on and on...

  • Barriers to entry (Score:5, Insightful)

    by Varitek (210013) on Tuesday February 07, 2006 @08:07PM (#14665036)
    The basic difference between drug patents and software patents is the barrier to entry. You can buy a $200 computer, a $50 book on programming, and be infringing on software patents later that evening. It also costs nothing to release that infringing code to the world. The only people likely to be infringing on drug patents, on the other hand, are well-capitalised pharmaceuticals companies, who can afford to research patents.

    This is why software patents "feel" different to the Slashdot audience. None of us think we will infringe on a patent for an anti-depressant, but we don't like the idea of infringing on some obvious patented algorithm just by writing a few lines of code.
    • The basic difference between drug patents and software patents is the barrier to entry. You can buy a $200 computer, a $50 book on programming, and be infringing on software patents later that evening.

      I stronly suspect that no professional programmer has not infringed on US software patents. I occasionally do a keyword search for "computer" on the USPTO to see the latest tech patents, and I'm always appalled by what comes up.

      It's not that they even always violate the rules of the USPTO -- sure, for a lot o
      • "business decisions were made based on the value of those patents, and there would be deep concern from companies if that IP value vanished."

        How much intellectual property value is there in any software patent that can't be recovered within, say, three to five years? What software patents are actively being used to generate significant revenue? How long are they likely to continue generating that income? Could a transition period like that make sense?
    • by bitspotter (455598)
      I tend to think the cost of innovation should be a major criteria for patentability. Granting monopolies on the deployment of innovations only encourages innovation when the innovation would otherwise collapse for lack of R&D funding. Such a case would indicate that the R&D is too risky for the current state of the market unless a patent can be granted to exclude competition.

      This makes some sense for things like drugs that require large investments to develop. Take away the patents, and, yes, you do
  • a plague (Score:3, Interesting)

    by jay2003 (668095) on Tuesday February 07, 2006 @10:50PM (#14666228)
    I only reason to have patents of any kind is to encourage invention. If Congress were to amend the patent statue tomorrow to disallow software patents, no one would quit innovating. Trade secret and copyright provide more than enough protection for commercial software interests. Software patents only benefit the lawyers who get paid to create the plague in the first place.
  • I'll beat you if you break my patent. Isn't it "physical" protection ?

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