Software Patent Sanity on the Way? 157
Ars Technica is reporting that the traditionally silent US Patent and Trademark Office (USPTO) may be starting to turn things around. It seems that in recent action the USPTO has started to make it much easier to invalidate software patents with some saying that the abolition of such patents may be in the distant future. "Duffy cites four recent cases that illustrate the Patent Office's growing hostility to the patenting of software and other abstract concepts. While the USPTO hasn't formally called for the abolition of software patents, the positions it took in these cases do suggest a growing skepticism. In the first two cases, decided last fall, the United States Court of Appeals for the Federal Circuit (which has jurisdiction over patent appeals) upheld patent rejections by the USPTO. They were not software patent cases, as such. In In Re Nuijten, the court considered a patent related to an algorithm for adding a watermark to a digital media file. The Federal Circuit did not invalidate the claims relating to the watermarking algorithm itself; everyone seemed to agree that the algorithm was patentable. Rather, the decision focused on whether a digital signal could be the subject of a patent claim. The court concluded that it could not. A victory for common sense, perhaps, but hardly a rejection of software patents."
Provide the proof! (Score:5, Interesting)
I've always believed that patents should include not just the idea being patented, but also details on how to recreate such an idea (ie. the prototype).
For physical objects, this means schematics. For drugs and such this means formulas. For software it means source code.
See how many companies will be willing (or in the case of patent trolls, ABLE) to patent software when they have to pony up a working implementation as part of the patent application (and thus public record).
I am also against 'secret' or 'partially secret' patents, how is someone supposed to know they are infringing on a patent if they can't get all the details on a patent?
Re:Software is not of patentable subject matter... (Score:5, Interesting)
More than embarrasing. Costly.
Like the saying, "Make hay while the sun shines" the fallacy that equates license to property will burn many more fools before we are done. Money in the bank is always decreasing in value. Using that money keeps it alive. Many profited in the domain name business, if they were wise enough to buy and sell them in a short lived market. The coming ICANN changes will soon massively devalue once treasured domains and those foolish enough to be left holding them, but not using them, will lose out.
The same is true of bogus patents. Fine if you were able to catch the wave of USPOs mistake that sparked the software patent war in the first place, and leverage ivalid patents, but disaster for those caught holding them in the belief that they are tangible property.
When the correction finally comes (and it will) it will wipe billions off the value of some companies. It couldn't happen to more deserving people of course. And perhaps that's the main reason it hasn't happened already. Software patents always have been, by widely recognised standards including those of UPSO itself, invalid. It's only the propagation of an error that has allowed some to profit meanwhile. The value of a market resulting from an error should not be justification to allow that error to persist.
algorithms patentable? (Score:5, Interesting)
That's an odd thing to agree upon, because algorithms are not patentable [umd.edu] (search for `algorithm')
But methods are. I forget where I read this, but the difference was explained something like this --
Bob: So, algorithms are not patentable and methods are. ... algorithms are not patentable, but methods are ...
Lawyer: Right.
Bob: But what's the difference between an algorithm and a method? Aren't they pretty much the same thing?
Lawyer: Listen carefully
Bob: ?
Re:What separates software patents from others? (Score:2, Interesting)
I wouldn't be all that averse to patents if it weren't for all the damn loopholes that big fat corporations have lobbied for.
Perhaps this is the side effect of big corporates pressing their luck a little too hard and making it pop, springing a massive leak of backlash.
Sorta like annoying someone enough that they finally snap, lose their temper, and let you have it.
Re:My Question (Score:3, Interesting)
Software can be patented but only by the owner of the microcode that make up the instructions of the processor. Of course this is not smart if the owner of the microcode actually want this to be used by their clients, this is why Intel, AMD et al. never patented the instructions of the processor.
The reason why others were able to patent specific sequences of the instructions have to do with corruption and actively attempts to stifle science by politicians. The patent system is seen by politicians as a good tool to keep the status quo as new science always undermines that.
Re:algorithms patentable? (Score:2, Interesting)
Still does not address the real issue (Score:4, Interesting)
The real issue, which most people avoid addressing, is that there is no practical distinction between software patents, chemical process patents, or machinery patents as a necessary consequence of basic theory. The reason this has become an issue at all is because there is increasingly little distinction in practice as well. Consequently, any dividing line is going to be arbitrary and capricious. Note that there is a similar emerging problem with copyright law, which is also premised on a false model of the universe that is starting to become obvious in practice. Yet few people are suggesting we solve this problem by rectifying the law with reality, instead opting to promote an alternative fantasy model of the nature of the universe that will ultimately break when it intersects with reality.
As every computer geek should know, there is no theoretical distinction between the machine, the program, and the data. At one time there was a practical distinction, but those lines have been blurring for many decades now. Any solution that pretends like these are theoretically distinct classes of thing solves nothing, as the cause of this problem was pretending a theoretical distinction exists where none does in the first place.
Software Patents Just Need to be Smarter (Score:5, Interesting)
Take for example Amazon's one-click checkout. The idea of a one-click checkout should not be patentable. Anyone number of people should be able to accept a single click to check-out, what should be patented is the system behind the checkout. The mechanism for tying in the user's login, prioritizing recently used shipping addresses and payment methods, etc... You need to patent the process or the invention, not an ethereal idea.
If I invent Widget A that performs task A, and am awarded patent "Widget A for performing Task A", and someone realized widget A will also perform task B without any modifications, they can't patent "Widget A for peforming task B", because I still own the patent for Widget A, which is all that really matters. I own the exclusive rights for Widget A, no one else can reproduce Widget A regardless of what they want use it for. Amazon didn't invent one-clicking (didn't Microsoft patent that recently?), so they can't say no one else can use one-clicking for checking-out.
It's similar to the patent that the adult-entertainment (read: porno) industry has been fighting for years. Some company patented the idea that videos could be downloaded from the internet. Problem is, since that company did not create the internet nor the http protocol nor the first web-browser, they didn't actually create anything that had to do with the content their patent covered. Improving upon an invention means changing the invention, not mentioning something else the invention could be used for. That's the problem with software patents. People are patenting what existing technology can do, but if they don't own the existing technology, they can't tell other people they can't use it for other things.
Re:What separates software patents from others? (Score:3, Interesting)
I think the only way to get the patent system perfect (or any other endeavor that man engages in to bring order to society) is to either have robots rule us (*insert memes here*), or make it profitable for the politicians to not accept sums of money (or campaign donations) to make loopholes. That would probably mean that we vote out everyone who engages in such behavior, no matter how good a leader they may otherwise be. A tall order.
Re:What separates software patents from others? (Score:3, Interesting)
Because in the first case, the patentable object is an actual thing that does something useful. Software on it's own as a separate entity is not useful as it does not do anything. It needs hardware to actually function and be useful. If it's not useful, it doesn't pass the requirements to be patentable.
If you want to patent say a new harddrive with software file system that allows fast system access, then as a physical unit the entire thing is patentable, and the patent item just happens to have software in it. But software on its own should not be patentable - it doesn't make any sense.
Re:My Question (Score:3, Interesting)
That's an interesting idea, if we can find where it ends. Surely patenting buttons a calculator is senseless. But software is completely open-ended.
Where would the logic end? If I design a new latch out of 3 screws and a flexible piece of metal, can someone argue against my patent saying that this is exactly the intended use of a screwdriver and a hammer? Or perhaps we could extend this logic to copyrights since the intended use of a pen is to write?
Re:What separates software patents from others? (Score:2, Interesting)
With some reservations, I agree (Score:3, Interesting)
I agree with scaling back of software patents with certain reservations. I don't think you should be able to patent abstract concepts such as formulas or even general purpose application software, but you should to make patent claims on certain kinds of software so long as the scope is narrow and there are specific hardware and software specifications.
Software that nonsuperflously extends the basic functionality of a particular device beyond what it was designed to do should be patentable. The best example of this is custom device drivers and but other novel software extensions might also apply.
Furthermore internal network architectures should be patentable. If you have a network that you own and operate, and you have a protocol that you use for that network, you should be able to patent your protocols so that third parties can't operate on your network by reverse engineering your protocols.
Re:Think of the Patent Attorneys! (Score:3, Interesting)
You must think our USPTO registration certificates also invest us with dark powers or something if you think we have that much power. Bush's cronies at the patent office have been working very hard to totally destroy the patent system, and we've been powerless to stop them. Last year, they passed a rule package that was retroactive and so draconian, every single patent attorney who commented on it said, "No, this is a bad idea." They passed it anyway, despite that fact that it was so far reaching that it was clearly statutorily invalid, and even constitutionally suspect. It cost our clients thousands of dollars to amend their already-filed applications to conform to the new rules. Then the rules were enjoined by a court at the eleventh hour (thankfully), and then we had to explain to our clients that all that work was for nothing.
If you never plan to invent anything, and want to ensure those who do invent have no recourse when their inventions are blatantly stolen by Big Business, then just lap up whatever those goons at the paten office dish out. But if you think there is any value to having a strong patent system to protect legitimate inventions (like the Framers of the Constitution did), take everything that comes down from the USPTO with a grain of salt---even seemingly "good" stuff like this.
Note that this post does not represent the opinion of my employer or anybody else except me.
Re:From the US Government? (Score:3, Interesting)
tinfoilhatmuch?
Registered patent attorney who has seen how things go.
Re:What separates software patents from others? (Score:2, Interesting)
I do think that inventors should be rewarded, as should those who support them.
The following idea is not new.
Dump the patent concept. Replace it with a 5% technology tax.
A maximum of 1% of the tax may be used to administer the tax. The rest is to be returned to inventors, and to those making the inventions available, and the consequences of using them. So you can get reward for inventing a drug, for finding new uses for it, for proving the efficacy of that use, and for showing that there are nasty side effects.
Broad principle: Reward the social DELIVERY of invention to all those wishing to implement it.
No monopoly of production is granted. The most you get is a head start, because you knew of it first.
Amounts would be assigned in proportion to the contribution to social advantage. (Yeah, it's vague.) Yet another drug in a series of similar drugs has no advantage, as the cost of proving safety is too high. Showing a drug (eg thalidomide) is very dangerous in a small number of cases should also be rewarded. Finding that boring old asprin in quarter doses helps prevent heart disease is to be rewarded.
Money would also go (a substantial proportion) to those enabling people to use ideas to their advantage. Good practical descriptions, search engines, parts sourcing. There is no reward for popularization though. You may get more from competently describing someone elses arcane invention than the inventor.
Let's take the case of software.
Someone invents an arcane algorithm. May get zilch.
Someone finds a field in which it is useful and writes code that is effective. Gets some $.
Someone expands the code into several well known languages, and comments the code so it is easier to translate into more languages. Gets $
Someone analyses the typical areas of application, generalizes them yet describes it sufficiently precisely that a searcher in a quite different field will find the code examples without expending a lot of time. Gets $
And so on.
I want invention delivered to me so I can use it.