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Time To Abolish Software Patents? 259

Posted by Soulskill
from the reply-hazy-try-again dept.
gnujoshua writes "Has the time come to abolish software patents? Fortune columnist Roger Parloff reports on a new campaign called End Software Patents, which he views as 'attempting to ride a wave of corporate and judicial disenchantment with aspects of the current patent system.' Ryan Paul of Ars Technica writes that the purpose of the campaign is to 'educate the public and encourage grass-roots patent reform activism in order to promote effective legislative solutions to the software patent problem.' The campaign site is informative and targets many types of readers, and it includes a scholarship contest with a top prize of $10,000.00. We've recently discussed the potential legal re-examination of software patents."
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Time To Abolish Software Patents?

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  • Yes. (Score:2, Informative)

    by pipatron (966506)
    Yes.
    • Re: (Score:2, Funny)

      by s1d (1185389)
      Finally.
    • No. (Score:3, Insightful)

      by tverbeek (457094)
      Software is the new Hardware, so I don't think patents should be done away with as we move into this realm. But the duration needs an update to reflect the modern-day pace of innovation. I'd say that 17 months would be about right.
      • Re:No. (Score:4, Insightful)

        by profplump (309017) <zach-slashjunk@kotlarek.com> on Friday February 29, 2008 @01:01PM (#22601586)
        I can understand why people object to obvious patents, or to patents with not demonstrable implementation, but for all the whining people do about the evils of "software patents" I don't think people understand how similar the situation is with plain old mechanical patents. There are just as many bad patents on physical devices; why is the concern here only about software?

        And as the parent suggests, I think a shorter term for software patents is a great idea. 17 months is probably a bit short -- I doubt many good ideas could make it from proof-of-concept to market in under 9-12 months, which doesn't leave a lot of protection time left on the patent. But certainly there's some single-digit number of years that would provide a workable balance.

        For that matter I think the term of a patent could be variable in general. We'd want limits on the valid term range, but based on the patent type and things like regulatory barriers to market entry (for example in drugs, where drug X must get FDA approval which takes 2 years, but drug Generic-X can use the previous approval -- the government provides a barrier to market entry that is unique to the applicant and doesn't apply to other in the industry) we could certainly pick a more suitable term for almost all patents.
        • Re: (Score:3, Insightful)

          by mfnickster (182520)

          I can understand why people object to obvious patents, or to patents with not demonstrable implementation, but for all the whining people do about the evils of "software patents" I don't think people understand how similar the situation is with plain old mechanical patents. There are just as many bad patents on physical devices; why is the concern here only about software?

          Because computers are general-purpose machines, and to say that a computer acting in one manner is a different invention than a compute

  • Actually, it's time to see if "regular" patents work as intended. If they don't we need to see if they can be fixed or if we have to get rid of them, and if so, if we should replace them with something else.
  • What are the implications of abolishing software patents? Weigh the possible advantages and disadvantages against the (questionable) advantages and (severe) disadvantages of the current system.
    • by jellomizer (103300) * on Friday February 29, 2008 @10:13AM (#22599374)
      Well lets say I made a compression algorithm that will lossless compress all data by 1/2 (Yes it is mathmatically impossible, I know) This a new and marvel method. I don't patent it. Microsoft sees it reverse engineeres it and makes their own version and sells it to make billions of dollars as well say Toshiba uses it in their HardDrive technology to double its disk space just with a firmware update, and use this to make an other billions... Now here I am trying to peddal a little WinZip like app where Microsoft and Toshiba has already made my App useless with the technology I created. I would say that I should get some compensation for my creation...

      I am not against software patents. I am againt most of the software patents. Software patents in my mind need to be very inovative and considered something where people said you can't do this with that, type of mantality. But most of the patents are not new ideas or something non ovious. Most of them are cases where any good programmer would come up with that method when given the problem.
      • by CastrTroy (595695) on Friday February 29, 2008 @10:30AM (#22599560) Homepage
        The problem with software patents is that anything that's really novel, like your impossible compression algorithm is basically a mathematical algorithm. Since you can't patent mathematical algorithms, there shouldn't be any need for software patents. I'm not sure if I've ever seen anything really inventive in software that wasn't a mathematical algorithm. There's patents on things like one-click shopping, which aren't mathematical algorithms, but which aren't really all that novel either. And then there's patents that are inventive, like GIF compression, MP3 Compression and others, but which fall under the umbrella of mathematical algorithms.
        • The problem with software patents is that anything that's really novel (...) is basically a mathematical algorithm. Since you can't patent mathematical algorithms, there shouldn't be any need for software patents. I'm not sure if I've ever seen anything really inventive in software that wasn't a mathematical algorithm.

          According to a paper posted just below [slashdot.org], you find yourself in perfect agreement with no lesser IT guru than Donald E. Knuth, author of The Art of Computer Programming [stanford.edu], who had already admonishe

          • by superwiz (655733)

            An algorithm is an abstract concept unrelated to physical laws of the universe.
            This is easily an argument for software patents. Abstractions are result of human creativity (and often its method). As such they are original and useful science (to some they even art). Therefore, they pass the litmus test for patentability directly established by The Constitution.
            • Donald E. Knuth: An algorithm is an abstract concept unrelated to physical laws of the universe.

              This is easily an argument for software patents. Abstractions are result of human creativity (and often its method). As such they are original and useful science (to some they even art). Therefore, they pass the litmus test for patentability directly established by The Constitution.

              They do pass the test for the "to creators" part - i.e. for copyright in the particular expression as a work (e.g. a paper in in a

        • Re: (Score:3, Informative)

          Since you can't patent mathematical algorithms,

          But you can patent using a mathematical algorithm to do something. I mean, at some level everything becomes a mathematical algorithim. The arrangement of chips to optimize [don't know enough specifics] is based on a mathematical algorithim.

          So, the math behind GIF comprssion may not be patentable, but an image file format compressed in that way would be.

        • The problem with software patents is that anything that's really novel, like your impossible compression algorithm is basically a mathematical algorithm. Since you can't patent mathematical algorithms, there shouldn't be any need for software patents. I'm not sure if I've ever seen anything really inventive in software that wasn't a mathematical algorithm.

          The problem is that all patents are mathematical algorithms, and as long as we continue to pretend this is not the case we will have people peddling non

      • by mdwh2 (535323) on Friday February 29, 2008 @10:34AM (#22599592) Journal
        Well lets say I made a compression algorithm that will lossless compress all data by 1/2 (Yes it is mathmatically impossible, I know) This a new and marvel method. I don't patent it.

        Historically, mathematicians (as well as other people like scientists) have never been granted an monopoly on the use of the results of their research, and it's not clear why should that change?

        As you acknowledge, it's mathematically impossible, so let's look at a more likely situation: you release your great new application, except big_company comes along and points out a range of other patents of theirs that you are infringing upon.

        At best, you might be allowed to cross-licence if you have something they want - in which case, they use your "invention" anyway. Otherwise, you have to stop distributing your product altogether (and hope you don't get sued).

        Even if we did accept your hypothetical scenerio - it's not clear that a world where hard drives everywhere have double space is worse than one where the only allowed application of this knowledge is your little app.
      • by molarmass192 (608071) on Friday February 29, 2008 @10:47AM (#22599732) Homepage Journal
        You're not thinking about the larger ecosystem in your assumption. You created an algorithm, in order to turn the algorithm into a viable product that you can release to market, you need to package it as an app. However, although your algorithm is indeed your own design, the GUI you create potentially impedes on several method patents. You get sued. In order to avoid the lawsuit, you drop the GUI and release a command line tool. However, the file I/O routines you use impede on several software patents. You get sued. That's the problem with software patents, they don't work well in a stack environment. I think copyright is the answer and has been all along. Remember, even if MS clean room reverse engineers your code, unless they can make their reimplementation significantly different from your original source code implementation, which should be impossible since your algo would be incredibly unique, they're still infringing on your copyright. This is the same problem cover bands face when releasing a CD of cover music. The original artist still gets their dues, even if only a passage from the song is used.
      • by TheLink (130905)
        I'm against patents and copyrights, if any they should last for a very short time, maybe 7 years at most. Patents don't work well nowadays- if we want a rapid pace of innovation.

        Take the example of Douglas Engelbart - he and his team were really innovative. Do you think that it was patents that encouraged that innovation? I doubt it.

        If you are as innovative as they were, you will be so far ahead of your time that any patents would have long expired by the time people "got it" ;). They made lots of stuff tha
    • Allowing software patents has just what you said:

      (questionable if any) advantages, and severe disadvantages.
      For recent analysis see e.g. this article [grosche.com] at Oxford University Press.
  • by BadAnalogyGuy (945258) <BadAnalogyGuy@gmail.com> on Friday February 29, 2008 @09:25AM (#22598992)
    You can bitch and moan all you want about software patents, but the problem is something else. It is the inability of "the little guy" to license patents in a way that doesn't cripple him, or make him subject to the whims of the patent holders.

    When patents are easily and fairly licensed, the incentive to use them is increased, and the patent holder reaps the rewards of the increased usage. When they are kept locked down tight and only used as bargaining chips in patent wars, then no one benefits, not even the patent holder.

    Patents should be freely licensable if the holder does not currently produce a product based upon the patent. The patent should be negotiable to any other third party who requires it, and it should be available at a reasonable price for reasonable terms. The only time a licensing request should be denied is in the case of gross misconduct of the licensee or if the licensee is a direct competitor to whom providing the patent would materially damage the patent holder. An arbitration agency should be in charge of deciding if a license denial is valid, and to decide if a particular patent holder is denying license requests too often.
    • As I recall, so-called "reasonable and non-discriminatory licensing" (RAND) makes use in free and open source software impossible.

      Also, some guy claims he prooved mathematically that software patents fail (disclaimer: i don't understand it) [1].

      [1] http://www.juergen-ernst.de/info_swpat_en.html [juergen-ernst.de]
    • by Ed Avis (5917) <ed@membled.com> on Friday February 29, 2008 @09:45AM (#22599144) Homepage
      The trouble is you are adding another layer of legal process and bureaucracy on top of an already convoluted system. Large firms will be happy to employ legal departments to play the game - to appeal at arbitration hearings, and spend time debating what is 'reasonable terms' in front of a judge. For small companies it's just one more obstacle.

      You seem to assume the existence of wise, benevolent Solomonic figures who can fairly arbitrate these disputes and decide what is 'reasonable'. But past experience with the USPTO and EPO shows that those who are already supposed to police the system can't be trusted; they tend to be captured by special interests and just do whatever will increase the scope of their own powers.
    • The only time a licensing request should be denied is [...] if the licensee is a direct competitor [...]
      With statements like this, I sometimes wonder if all the stifling of innovation through hindrance of competition in economics is just part of a bigger plot to prevent the singularity from happening all too soon.

      Take that, Kurzweil !
    • Re: (Score:3, Insightful)

      by pipatron (966506)

      no one benefits, not even the patent holder

      One might argue that the patent holder gains by vendor lock-in and monopoly.

    • by LinuxDon (925232) on Friday February 29, 2008 @09:51AM (#22599192)
      The problem is that software patents mostly patent ideas instead of ready to use building blocks.
      Take the Blackberry/RIM case as an example, the other company just patented 'wireless e-mail' instead of a usable documented working prototype.

      Thus: all kinds of theoretic or obvious ideas are being patented, just waiting for someone to build them and then sue the hell out of them.
      • by zehaeva (1136559) <<zehaeva+slashdot> <at> <gmail.com>> on Friday February 29, 2008 @10:09AM (#22599346)
        Agreed, you should not be able to patent a design schema of a software system, you should have to build a working prototype. Patents should cover only producible/produced products. Not the imaginary ravings of some guy in his basement who thought "Wouldn't it be cool to have a wireless email system?" and run out and patent nothing more than a description of a system.
      • by init100 (915886)

        I agree that working implementations should be necessary, but that would mean that it can just as well be abolished, as a requirement for working implementations would narrow patents down to something that copyright already effectively is. Sure, it might have some additional powers, but not much.

        Personally, I think that protection should be awarded for those tasks that demand a serious investment in time and/or money, and that is implementation of actual software. Thinking up an idea for a software projec

    • Re: (Score:2, Interesting)

      by louks (1075763)

      The only time a licensing request should be denied is in the case of gross misconduct of the licensee or if the licensee is a direct competitor to whom providing the patent would materially damage the patent holder.

      I believe companies blocking 'direct competition licensing' would create as much litigation as infringement does now...

      Case in point [wired.com], isn't nearly everyone who could use the "Pinch Technology" a direct competitor?

    • by jmichaelg (148257) on Friday February 29, 2008 @09:58AM (#22599246) Journal
      It is the inability of "the little guy" to license patents in a way that doesn't cripple him, or make him subject to the whims of the patent holders.

      Sorry, but that's plain bullshit. Patents exist for two reasons - lawyers and patent clerks make money off of them and large corporations use them as cudgels to beat off small competitors who will completely overturn the corporation's revenue stream.

      Back when software patents were first being discussed by the PTO, it was clear that "the little guy" wasn't part of the issue at all. The San Jose Mercury was reporting on the hearings as they were held around the country "to solicit public input..." When the road show came to Silicon Valley, developer after developer after developer got up and spoke against them. Corporate lawyer after corporate lawyer after corporate lawyer spoke in favor. Well there was one exception - a developer who had written a piece of software that would show you what you looked like with different hair cuts. Even back then there was already prior art on that "invention." Somebody had written a mug shot package for the Mac that police departments used to help identify perps.

      Towards the end of the hearing, a developer got up and pointed out how almost all the developers had spoken against the proposal and the lawyers had spoken for it. Bruce Lehman, the Patent Commissioner at the time and who was running that particular hearing, agreed with a smirk - he was a lawyer. You see who won out.

      I've heard a very few good developers speak in favor of patents. Bill Atkinson comes to mind but he was speaking more in the abstract vs the reality. Most of the developers whom I've heard favor patents weren't very good as developers and therefore didn't realize that patents strike at the very core of what we do which is improvise on pre-existing ideas. The best software out there isn't the software with some unique, and hence patentable, feature. It's the software that melds the features into a coherent, consistent package that works intuitively. Doing that well is so damn hard that having to fight patent trolls and hack developers who claim feature "x" is their invention adds nothing.

    • You can bitch and moan all you want about software patents

      Thank you. I can see where that is going to come in useful

      The patent should be negotiable to any other third party who requires it, and it should be available at a reasonable price for reasonable terms.

      mmmm... Reasonable according to whom? Reasonable by what criteria?

      Suppose you have a patent I want to licence and we decide a dollar a year is reasonable. Suppose you have a million? Is a million dollars a year still reasonable? And let's

    • There is no way to fairly license software patents, because it is too easy to inadvertently infringe upon a software patent, without even realizing it. Consider, for example, a patent on virtual desktops (this is patented, IIRC). Now, you could easily ship a system with that functionality, without even realizing that's what you did; consider a person who is aware of the patent, ships a Linux system with only one VT and only single-workspace WMs, in an attempt to not infringe upon it. A user could, howeve
      • by CastrTroy (595695)
        I'm not really for software patents in any way, but in the case of lossy compression, there actually is quite a bit of invention that goes into it. When you get down to it, there's a lot of research into what you can cut out that people won't notice. I think that is the really invenvtive part. It's not really just inherent in the data. When you think about an MP3 file, they put a lot of research into discovering what parts of the sound you could cut out, without too many people noticing.
        • Actually, the MP3 stuff wasn't really innovative, because the parts of the sound spectrum that people wouldn't mind not hearing were known as early as the 1920s, and was used in the 1930s to save bandwidth on telephone lines. The real question was how to properly filter the file to compress it, without generating spurious sidebands and other artifacts.

          Also, I was referring to the LZW compression in GIF ;).

    • by Secrity (742221)
      "It is the inability of "the little guy" to license patents in a way that doesn't cripple him, or make him subject to the whims of the patent holders."

      The exact same thing could have been said in the late 19th and early 20th century. The Seldon patent crippled the ability of individuals to build cars, as did the RCA and AT&T patents on vacuum tubes, Bell's telephone patents, and the RCA radio patents. The courts ruled that the Seldon patent was not as mighty as all-inclusive as Seldon had claimed. Th
    • Re: (Score:3, Funny)

      by orlanz (882574)
      You didn't write a lot, but I have multiple issues with your post. (Please don't take it personal, a lot of ppl think along your post's lines, and I want to show the issue in it.) When I say "IP", I am talking about software patents.

      Terms - the following terms in the post are extremely vague and add only complications (read: dead weight cost, regulatory verbiage) to the overall system:
      ...easily and fairly licensed..., ...third party who requires it..., ...reasonable price for reasonable terms...
  • by walruz (851125) <walruz@@@gmail...com> on Friday February 29, 2008 @09:26AM (#22598998) Homepage
    Abolition of Software Patents is just plainly nonsense. Not only because companies will madly lobby to destroy any attempt to do so, but because it's not fair for the rightful owners of software patents who developed software (NOT patent trolls).

    We all know the answer, there should be some kind of legislation or law (IANAL) that should enforce patent owners to
    a) keep developing software based on the patent, not just earn royalties
    b) be rightful creators, or earn the patents on a company merge
    c) be a real company, not just some patent troll
    Where a, b & c should be all true.

    My 2c,
    W
    • by SirGeek (120712) <sirgeek-slashdot@NOsPam.mrsucko.org> on Friday February 29, 2008 @09:33AM (#22599054) Homepage

      You make it sound like they lose all their protection for the software. That isn't the case. It will STILL be under a copyright.

      And if something can be easily re-implemented (i.e. CSS/deCSS), then does it really deserve the ability to stifle all competitors like patents do ? Shouldn't the best software/best value be the winner instead of whomever got to the patent office first ?

      Neither software nor should processes be copyrighted. How do you think the world would have been if Ford had patented the assembly line ? Do you think we would have been able to advance manufacturing if he had ? Do you think he would have licensed it to his competitors ?

      • by evilviper (135110) on Friday February 29, 2008 @10:36AM (#22599610) Journal

        And if something can be easily re-implemented (i.e. CSS/deCSS), then does it really deserve the ability to stifle all competitors like patents do ?

        It's pretty easy to "re-implement" newly developed pharmaceutical drugs as well...

        The cost of development of both drugs and mathematical concepts (software) can be extremely high. And if you don't give companies the options of patents to protect their developments, you can immediately say goodbye to all open standards and scientific sharing. It'll all instantly switch to undocumented and obfusticated binary-only code. And since reverse engineering is simply too easy, the only workable model will be to create a new product with the advent of each incremental improvement they come up with. The cost of developing something advanced like H.264 can't exactly be covered by selling support books...

        How do you think the world would have been if Ford had patented the assembly line ?

        How do you think the world would have been if the Wright brothers had patented the airplane?

        Oh, that's right, they did... Not only did their patents NOT drag the industry down, it spurred the development of alternate ways to achieve flight, which soon after gave us the methods we know and use today... That nice new Boeing 787 doesn't exactly use "wing warping" now does it?

        And I should point out that DVD-CSS is NOT patented, and the assembly line no doubt would not have been unique enough to be patented, or at least would have had more than enough prior art in slaughter houses to invalidate it quickly.

        • The cost of development of both drugs and mathematical concepts (software) can be extremely high.

          Right. Because developing a new theorem requires millions of dollars worth of industrial equipment as well as years and years of double blind testing before the regulators will let anyone use it.

          Funny how people keep forgetting about that.

          • by evilviper (135110)
            "developing a new theorem" does not require "millions of dollars" but it is, still, very expensive, and results in completely original results.

            Look into the cost of developing H.264 for yourself rather than passive aggressively making an ass of yourself.
        • by init100 (915886)

          And if you don't give companies the options of patents to protect their developments, you can immediately say goodbye to all open standards and scientific sharing.

          Except that open standards and scientific sharing still flourishes where there are no software patents.

          Oh, that's right, they did... Not only did their patents NOT drag the industry down, it spurred the development of alternate ways to achieve flight, which soon after gave us the methods we know and use today... That nice new Boeing 787 doesn't exactly use "wing warping" now does it?

          Compared to the time since the first powered human flight, patent terms are short. There has been plenty of time to use the previously patented methods of the Wrights Brothers. And besides, they probably didn't patent their invention in the entire world, so competitors could just go to another country to freely use their patented inventions.

          Compare that with software and patents. Patent term lengths

          • by evilviper (135110)

            Except that open standards and scientific sharing still flourishes where there are no software patents.

            That is the case only because they can (and do) earn money off the software patents they file in other countries (the USA and Japan). It's a big enough market that it can prop up development in other countries, but it remains a prisoner's dilemma...

            Should the USA decide to abolish software patents, things are going to quickly get very ugly.

            Think about computing 20 years ago, what a difference.

            Back then we

    • by darjen (879890) on Friday February 29, 2008 @09:52AM (#22599208)

      Abolition of Software Patents is just plainly nonsense.


      What's nonsense is the claim that someone can have exclusive ownership over an idea or pattern. It creates a whole bunch of unintended consequences. I fail to see how legislation can fix that.
    • by CastrTroy (595695) on Friday February 29, 2008 @10:04AM (#22599302) Homepage
      My biggest problem with software patents is that most of the don't provide a working model. If you want to patent the software, you should have to provide all the source code with the patent that shows your "invention" working. I don't like how software gets 3 kinds of legal protection where anything else in the world only gets one. With software you get trade secrets, because you never have to release your source code. You also get copyright, so the relased binaries (or source code if you choose to release it) can't be copied unless specific permission is given. You also get patent protection. No other thing produce by people gets so much legal protection. My biggest problem with software patents is that they are mostly given on trivial inventions, where any skilled developer faced with the same problem would come up with a very similar solution.
      • I don't like how software gets 3 kinds of legal protection where anything else in the world only gets one. With software you get trade secrets, because you never have to release your source code. You also get copyright, so the relased binaries (or source code if you choose to release it) can't be copied unless specific permission is given. You also get patent protection. No other thing produce by people gets so much legal protection.

        Cartoon characters are subject to exclusive rights under both copyright and trademark law. In addition, the model sheets [wikipedia.org], which help determine whether a drawing is off-model [wikipedia.org], may be unpublished and therefore a trade secret.

    • by renoX (11677)
      >Abolition of Software Patents is just plainly nonsense.

      [sarcasm] Of course as the fact there software patents do not exist in Europe show that a society couldn't live without software patents: clearly there is no software producer in Europe [/sarcasm]

      Granted there are probably more software producer in the USA than in Europe, but this was already the case before SW patents were thought as valid by the courts, AFAIK no study has shown in increase in SW developments thanks to patent.
    • I'm torn when it comes to software patents. Inventors need to have a LIMITED amount of time in which they can exclusively profit on their ideas. Without this, the only ones who would profit from invention would be those who can throw the most engineers at the idea (read M$). While I love open source, it simply doesn't work for all business models and I think it is a bit hypocritical to evangelize choice and freedom while seeking to deny the right one has to not share. I see nothing wrong in software tha
  • by IBBoard (1128019) on Friday February 29, 2008 @09:28AM (#22599016) Homepage
    It's only a month ago that Slashdot covered the UK's decision to not reject software patents [slashdot.org] "out of hand".

    So, while software patents probably do need abolishing (or at the very least being converted to a proper patent that can then be implemented or described in software, rather than an algorithmic patent) I think we in the UK have a leadership that think otherwise and a populace who don't know much better and don't care unless it is in some reality TV show.
  • by Mr. Underbridge (666784) on Friday February 29, 2008 @09:41AM (#22599116)

    The problem isn't software patents. The problem is actually business model patents masquerading as software patents. Another issue is that patent length is standard across industries, when it should vary based on the timescale of innovation. Seven years in software is an epoch; the same for pharmaceuticals would be about a third of the amount of time spent developing a drug.

    But the mechanism by which one implements his invention shouldn't matter. The fact that the bar is too low is an entirely separate problem.

    • the same for pharmaceuticals would be about a third of the amount of time spent developing a drug.

      Speaking of pharma stuff, did you knew that the industry probably spends more an advertising than on R&D [1] ?
      Perhaps they should be able to patent certain types of ads, too ?

      [1] http://www.google.com/search?ie=UTF-8&oe=UTF-8&sourceid=navclient&gfns=1&q=pharma+advertising+research [google.com]

  • The legislative approach is difficult, but I think it's the best option in the USA. Getting good legislation would be very difficult. Most legislation in the USA is dreadful, but there's a good constitution, so the judges have the job of reconciling the letter of the law with common sense. So I think this campaign is taking the right approach by working via the court system.

    FWIW, my background is that I worked on the EU anti-swpat campaign [compsoc.com].

    • The idea of using the courts to fix the problem is interesting, since the courts created the problem in the first place. Software patents didn't exist in the '70's. In 1980 the Supreme Court ruled that a device that included software could be patented, forcing the Patent Office to change its policies. In 1998 the Federal Circuit Court ruled that not only software was patentable, but business methods were as well. This last ruling is the source of the problem. I am not sure if the best action is in the court
  • Like many of you, I hate the idea of software patents, but I can't but worry about the impact of an abolishment of software patents.
    My worries stem from several things:
    • Many companies have come to rely on software patents raising the barrier to entry for competitors. Software patents certainly can level the playing field because the size of a company has less to do with the defendability of a patent than you might think. Without software patents, a large company can "simply" throw a bunch of engineers
    • by Wildclaw (15718)
      I am against patents in general. Not only software patents, but any patent as I think the disadvantages far outweigh the advantages. There are a few cases where they are useful, but they are simply too few to make the system worth keeping.

      Many companies have come to rely on software patents raising the barrier to entry for competitors

      Artifically raising the barrier is usually not sound economics. While it can probably be said to be one of original motivations of patents, it simply causes the same problems that it tries to prevent. By raising the barriers of entry you decrease competition on the market

    • Re: (Score:3, Insightful)

      by enjahova (812395)
      I can only address your first two points. It seems that you have misconstrued the purpose of patents as protection for your business model, rather than to promote the progress of science and the useful arts.

      Without software patents, a large company can "simply" throw a bunch of engineers at the problem and produce something similar very quickly. Is this better that the current software patent system?

      Isn't this the original point? If somebody throws an army of engineers at a problem, and it is thus solved,

    • by init100 (915886)

      Like I mentioned, we have patents pending and have invested a substantial amount of money on lawyer and other patent fees. Are we going to get our money back? From whom? What if you already have a software patent? Will there be a refund?

      Of course not. Why should you? Your investments in patents would be just like any other failed venture. Should investors get compensated for bad investments into companies that go bankrupt? Times change, and those that are heavily invested into the old ways will take a loss.

  • I want to patent my idea first: It's a method of crippling a system's CPU using only a few lines of code. I'm not going to write it here obviously though, because otherwise someone will beat me to the chase.
  • Blink, blink... nope, just middle-aged synapses misfiring again.
  • (Light blue touch paper and retire to a safe distance.)
  • Software patents are not usable patents. "In the old days" a patent allowed a company to avoid R&D costs to produce a product. It was a way to allow inventors to create things and companies to build things. An inventor could invest his own time and money on his dream, patent an invention and a company could build the invention from the patent and pay a royalty. It was a beneficial arrangement. It makes a lot of sense in that context.

    Patents today do nothing for the licensor except "protect" them from li
  • In "Math You Can't Use", Ben Klemens makes the point that the software development market is divided almost evenly into three segments: retail, consulting, and in-house. Software patents as currently defined and enforced benefit the first group, retail, but hurt the other two because they do not have the same market dynamics at all.

    Patents are an artificial market force created to prevent certain kinds of unfair practices in a centralized, controlled-distribution market. Applied to a decentralized and distributed market such as that for free and open source software, patents create the nightmare scenario of an exponential increase in legal exposure as developers build upon each other's work.

    The answer, then, isn't to do away with patents, but to tweak them so they make economic sense again.

    Here is Chapter 5 [wordpress.com] of "Math You Can't Use", and it is well worth reading.

    I just purchased the book and am looking forward to reading the rest. A very interesting work.
  • by Bryansix (761547) on Friday February 29, 2008 @12:14PM (#22600790) Homepage
    You can't patent music so why can you patent software? It seems very similar to me. All musicians use the same notes over an over again but it's how you order them that makes a song. Songs are copyrighted but not patented. So the same should hold for software in that programers can share the same tools (notes) and right completely different forms of software which should then be copyrighted but not patented.
  • by grandpa-geek (981017) on Friday February 29, 2008 @12:26PM (#22600950)
    There are three main problem with software patents (and business method patents as well). One is the impossibility of searching the prior art. Another is obviousness to a Person Having Ordinary Skill In The Art (PHOSITA). And a third is that many software patents don't claim innovative solutions to problems, but claim all solutions to a newly discovered problem, even one for which the applicant really hasn't provided a practical, implemented, innovative solution.

    The prior art in software is the corpus of all previously written software. To see if something had been done before, it would be necessary for a patent examiner to look through all software that had been written before to determine if a particular technique claimed in a patent application had been used. Programmers don't document their work very thoroughly, much less write journal articles on the techniques they use. And a lot of software technology is just learned by doing and by copying ideas discovered by reading other peoples' code but not formally otherwise documented by them.

    Open source software provides one window into the corpus of software, and the IBM Type 4 program libraries (for machines such as the 360 and 1130) have some published source code, but proprietary software is distinctly unavailable for searching in most cases.

    The same applies to business method patents. What business writes journal articles about their ways of doing things, especially ways that give them a competitive edge? Again, ideas are learned by doing and copying ideas learned on previous jobs.

    One example is the Amazon "One Click" patent. That patent combines the cookie with the open account. You couldn't tell that by looking at the obfuscated language in which the patent is written, but that is what it does. Evidence of the open account as a business process can probably be found by looking in records written in Babylonian cuneiform. However, the USPTO doesn't search records in Babylonian cuneiform to look for evidence that a business process has been used before.

    A second example is the patent for which Verizon sued Vonage. Any programmer with a brain would know that to hook up a VOIP system to a telephone switch would require some information and that the best way to organize the information would be in a database. The rest is legal obfuscation. If patent applications had to be written to a level of plain understanding, most would fall away because of obviousness.

    Finally, patent applications should be required to include a working model or implementation or some kind of other evidence that the applicant wasn't just patenting the problem but actually had a solution. There was a discussion some months ago on Slashdot about a patent that covered all ways of doing something with graphics. The recipient clearly had discovered something that needed to be done in a graphics system. What the patent claimed was all ways of doing what was needed. IIRC, what the patent actually provided may have been one way of doing it, or might not have provided an actual solution. This is the software equivalent of patenting the electric light without figuring out how to make one that worked, a process that took Edison a lot of time and effort.

    Many lawyers have a difficult time understanding technology. Some became lawyers because they weren't good at math and science. When those lawyers become judges, they don't suddenly gain an understanding of technology. They stick to their comfort zone. That is the reason the CAFC required documentary evidence to prove what prompted a PHOSITA to do something obvious. If it wasn't obvious to a lawyer, why should they treat it as obvious to a PHOSITA? Fortunately, the Supreme Court saw otherwise. Perhaps the courts will come to their senses on software and business method patents as well.
  • I'll come squarely on the anti-slashdot side on this one. Software patens must continue to exist. Maybe in a better-defined way, but if they are abolished, software will be hindered severely. I am a mathematician. I may have an idea of how to SOLVE the travelling salesman problem in polynomial time.... Again, not prove that it's impossible, but solve it. It's not my direct are of expertise. So I would need to invest at least a year to iron the details of my idea. I have no intentions of doing it jus
  • ...patent-able.

    which makes this effort something of a public deception.

    Instead what is needed is a proper genuine and honest perspective, rather than a political/economic argument
    http://threeseas.net/abstraction_physics.html [threeseas.net]

    My wikipedia like page (with links and more) is currently down.

Fools ignore complexity. Pragmatists suffer it. Some can avoid it. Geniuses remove it. -- Perlis's Programming Proverb #58, SIGPLAN Notices, Sept. 1982

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