Cato Institute Critique of Software Patents 242
binarybits writes "I've written an article for the free-market Cato Institute about how patents impede innovation in the software industry. It points out that people tend not to realize how vast the software industry is. It's not just Google and Microsoft; virtually every organization has an IT department producing potentially-infringing software. Organizations as diverse as J. Crew and the Green Bay Packers have been sued for patent infringement. It's crazy to expect all these organizations to worry about potential patent infringement. Hopefully the Supreme Court's Bilski decision will lead to new limits on software patents."
Yes, patent system not meant for software patents (Score:5, Informative)
Patent attorney here. Yes, software patents shouldn't be there. Patents are there to stop people from sitting on their ideas. Stopping people from sitting on their ideas helps society, because it give society more knowledge. However, for software there is no need for this mechanism. There is no shortage of innovation because of lack of progress. If one person doesn't think of it, another one will. Also, the first sale doctrine doesn't work. If I have a patent on a resistor, and I sell it to you and you put it in a computer, you're free to do that. You don't have that with software. I can't buy a piece of, say, Word, and use it in my own programs. For the same reason, it is very hard to figure out whether your program is off the hook. Any aspect of a program could be patented. Finally, software patents are bad (with so called "wish" claims). I have programs developed for my company. It takes me 5 seconds to come up with an idea, but it may take the programmer 5 days, or 5 weeks, to implement. If I go with a software patent to a programmer, no time is saved.
The patent system is open source avant la lettre. An inventor has to provide all his knowledge (provide the best mode), in a way that can be replicated by an ordinary person skilled in the art, and it is available on line from patent offices. The "license" it comes with is a peculiar one (territorial limited/time limited), but it expires sooner than any copyright. But it is a rough tool. Fine for many types of inventions, including medical drugs, but not for software (or business methods).
Bert
Re:Yes, patent system not meant for software paten (Score:5, Informative)
It is not either/OR. So, they get the copyright too. Double whammy.
Bert
Interesting Patent link (Score:1, Informative)
If you're interested on the issue of patents,
http://www.gnu.org/philosophy/stallman-mec-india.html#header [gnu.org]
Anti-patent whining (Score:4, Informative)
"Imagine the outcry if the courts were to legalize patents on English prose. Suddenly, you could get a "literary patent" on novels employing a particular kind of plot twist..."
Copyright on literary concepts is strong enough to survive conversion from book to film, even when nothing remains of the original dialogue. It's strong enough to cover original sequels. Read Harry Potter and the Unauthorized Sequel. [marquette.edu] The concept of "scenes a faire" [wikipedia.org] covers the concept of literary "prior art" and prevents re-copyrighting the obvious. This is generally considered workable, although it took some litigation in the 1980s before the law settled down as regarding video game "look and feel".
"Small businesses and nonprofit organizations far removed from the traditional software industry have IT departments producing potentially infringing software. The Brookings Institution's Ben Klemens has" documented [cato.org] that this is not a theoretical problem"
Following the "documented" link leads to a set of PowerPoint slides by someone listed as "Senior Statistician, Mood and Affective Disorders, NIMH". (Where does the Cato Institute find these people?) He's grumbling about infringement lawsuits directed against the Green Bay Packers, Caterpillar, Kraft Foods, J. Crew, Linens and Things, McDonalds, Dole Food, and Oprah Winfrey. All occupy dominant positions in their industry. (Technically, the Green Bay Packers are a "small business", with only 189 employees, but the business is valued at $911 million.) [forbes.com] None is a nonprofit.
Re:Yes, patent system not meant for software paten (Score:3, Informative)
The "exhaustion doctrine" is also sometimes known as the "first sale doctrine". While not identical to copyright first sale, it is analogous.
As far as State Street goes, have most of the software improvements since then been patented? No? Have some that would have happened anyway been patented in a bogus overbroad way by non-implementers? When I watch true innovators like RIM get their pants sued off by people who didn't do anything except sit around brainstorming 5 second ideas with their patent attorneys, I think it's pretty obvious the system is broken.
Most of the rest of your comment is pure claptrap as well. For example, if I buy a properly licensed special resistor, under the exhaustion doctrine I can pretty much do what I want with it, and the original licensor can't come back and get me for any infringement under the licensed patent.
Cato !Free Market (Score:2, Informative)
It is nice to see Cato catching up to the real supporters of the free-market, who have been advocating for the abolishment of intellectual property for quite some time now.
Re:Yes, patent system not meant for software paten (Score:3, Informative)
Exactly. Show me somebody who's implemented a software algorithm from its description in a patent document and I'll show you a pig that can carry a family of six aloft across the Atlantic.
Re:Yes, patent system not meant for software paten (Score:5, Informative)
No, he's not.
Yes, he is, at least in the EU. Reverse-engineering is forbidden by software copyright law here, except if all of the following conditions are true:
See article 6 of the EU software copyright directive [europa.eu].
The output of his reverse engineering will be the abstract method that can be covered by a patent, but not by copyright. For example, after looking at the disassembly for X, and performing more analysis using a debugger, he figures out the steps to perform X are:
At the very least, you are tainted when you do stuff like this. Phoenix didn't do clean room reverse-engineering for nothing when they re-implemented IBM's BIOS [computerworld.com].
Right, but competition usually means performing to equal or exceed your competitor.
And this can be in many ways: customer service, price, time to market, branding, offered products etc.
If you simply sit by and wait, then copy (steal) something innovative created by your competitor, that's not performing at all.
Actually, that is exactly how competition works. You take what already exists, duplicate it and presumably add value in one way or another (from the list above). A certain amount of imitation is mandatory to have a competitive market.
Thanks to copyright and to the complexity of making well-working and polished software, innovators automatically have a limited lead-time advantage. Artificially extending this by many years using patents is only justifiable if otherwise the entire innovation of the industry would collapse. And there are simply no indications that this is the case, on the contrary.
It's just leeching off someone else's work to profit yourself. Soon inventors will get tired of getting taken advantage of, and only pursue inventions that take little time and money. That way, if someone copies their ideas, the loss won't be much. But society, as a general, will suffer more because many good inventions take more time and money, and those won't be created without sufficient protection.
It turns out that the above is simply not true in case of the software world. Competition (i.e., what you call copying, stealing and whatnot) is what drives innovation in the software industry, and the traditionally mild IP-regimes have been very conductive to this. See the overview of studies [slashdot.org] I posted in a previous comment.
Re:Yes, patent system not meant for software paten (Score:3, Informative)
The idea is that Roche developed Tamiflu, and 20 years from now anyone can make Tamiflu. At worst, society is losing a 20 society-disease-years over the matter (that's a fun unit, innit?). Afterward, society gets to benefit from a new flu drug (infinite society-disease-years, or something like that - and probably with a bigger unit of Society to boot).
Consider the alternative, where there is no such patent available. Does Tamiflu, or an enhancement, get created at all in this scenario? Sure! Of course! .... eventually. But academic / government-sponsored research surely cannot hope to replace the entire research output of the pharmaceutical industry! (Even if it is trendy these days to demonize them as a bunch of leeches on society incapable of generating anything but drug advertising, they actually do pay some very smart, highly educated people high-five/six-figure salaries to do research.)
This is why, as a young person, I like 20-year patents on drugs and pray that they will remain around during my lifetime, so that there will be more drugs (and medical procedures etc) - both brand new and 20 years old - available to me when I'm old and need them most. The alternative has a very real chance to negatively impact my future quality of life... and that of my children, at such time that I have any.
Re:Yes, patent system not meant for software paten (Score:3, Informative)
The only reason that the software industry hasn't been brought to a grinding halt by patents is that software is generally opaque; few other than the maker knows the details of how it works (and yes, that applies to open source as well, to a large extent). So even the patent holders have no idea how much infringement is going on. The exceptions are where the patent holders have managed to erect a tollbooth across a standard, as with LZW and a few others; then they know that anyone implementing the standard is infringing their patent, and they can pounce.
Re:Cato !Free Market (Score:2, Informative)
Seriously? Every time I've seen something from the CATO institute it's always been the most zealous kind of free market fundamentalism. I can't see how you *can* get more economically right wing than that, nor do I want to.