Time To Abolish Software Patents? 259
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."
Weigh the options. (Score:2, Insightful)
Software patents aren't the problem (Score:5, Insightful)
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.
Unfortunately Britain is behind the times (Score:3, Insightful)
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.
Feeding the troll... (Score:5, Insightful)
No, we haven't.
We've established that mathematics should not be patentable.
Oh, BTW: you probably meant "an exception to the rule that he who creates something novel should be rewarded".
Otherwise it just doesn't make sense, with or without Chewbacca.
Well, let's first see if patents even work as intended.
Re:Now it's personal! (Score:1, Insightful)
rewarded for creation is by patent.
Here's a list to start you off
* Works of fiction
* Mathematical theorems
* Business methods
* Algorithms
* SOFTWARE
:
Re:Cure worse than disease (Score:5, Insightful)
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 ?
Good job with the bathwater, watch the baby (Score:5, Insightful)
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.
Re:copyright too.. (Score:3, Insightful)
Re:Software patents aren't the problem (Score:5, Insightful)
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.
Re:Software patents aren't the problem (Score:3, Insightful)
One might argue that the patent holder gains by vendor lock-in and monopoly.
Impacts on Software Industry? (Score:2, Insightful)
My worries stem from several things:
Re:Software patents aren't the problem (Score:5, Insightful)
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.
Re:Cure worse than disease (Score:5, Insightful)
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.
Re:Software patents aren't the problem (Score:3, Insightful)
we have a nasty habit of finding ways to "win" a system, any system...
Refusing to Invent (Score:1, Insightful)
The problem isn't software patents per se, it's vague patents.
What's the worst that could happen if patents were abolished? Simple, inventors could refuse to invent stuff. So that tells you what should be patentable and what shouldn't be. If the "invention" is not something an inventor could prevent society from having by choosing not to invent it -- then it shouldn't be patentable. (Similarly, if the inventor could prevent society from having it, then it should be patentable.)
A patent is not a "grant" of rights, it is merely a recognition of a right the inventor already possesses, the right not to invent. Until the government gets it straight that governments don't "grant" rights, but rather recognize them, we will always have problems with patents.
(I checked Anonymous but my name still showed up in the preview...)
Re:Software patents aren't the problem (Score:5, Insightful)
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.
Re:Software patents aren't the problem (Score:4, Insightful)
Re:Weigh the options. (Score:4, Insightful)
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.
Re:Now it's personal! (Score:3, Insightful)
(* well, except for genes, but that's mad too IMO.)
Re:Weigh the options. (Score:5, Insightful)
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.
Re:Weigh the options. (Score:4, Insightful)
Patents Just Need Tweaking - Ben Klemens (Score:4, Insightful)
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.
You can't patent music so why patent software? (Score:3, Insightful)
No. (Score:3, Insightful)
Re:Impacts on Software Industry? (Score:3, Insightful)
Isn't this the original point? If somebody throws an army of engineers at a problem, and it is thus solved, hasn't the world benefited? Patents are not supposed to protect problems you can throw engineers at anyway, they are supposed to protect inventions that are non-obvious to people in the field.
So you're company hasn't built anything? You have "just an idea alone?" Why would anyone give you money? Why don't you make something, and then show it? I don't think patents are necessary in the software world to protect your inventions. After all, the latest trend is for the big guy to buy the little guy for obscene amounts of money. Why do you think this is? Because they are buying talent and brand, not a physical device.
Re:No. (Score:4, Insightful)
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:No. (Score:3, Insightful)
Because computers are general-purpose machines, and to say that a computer acting in one manner is a different invention than a computer acting in another manner is basically pretty silly.
Not to mention that computers give you almost infinite flexibility in achieving a task. To restrain that freedom is counterproductive and fundamentally unfair. To quote the League for Programming Freedom, "no one should be able to dictate what kinds of programs you can write."
Re:time to burn some karma (Score:4, Insightful)
Re:Cure worse than disease (Score:3, Insightful)