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."
Excellent, but... (Score:5, Insightful)
do you really expect rational arguments in favor of the public good to be of any help against entrenched interests in this matter?
Assholes (Score:3, Insightful)
Re:Cato Rocks (Score:3, Insightful)
This is defense from a lawsuit by a company that makes useful products. It doesn't help against patent trolls.
Basically, if you own a patent, you're actually better off not producing any products.
Re:Slashdot users are fucking bastards (Score:-1, Insightful)
How funny (Score:0, Insightful)
Patent infringer here. (Score:5, Insightful)
Anyone who's written a relatively small amount of software has very likely infringed on someones software patent. I happen to know for a fact I'm an infringer since I wrote software that did a simple zip-code distance lookup web program and years later found out someone actually managed to patent this. The application was taken down years ago because the organization I created it for ceased to exist and had extremely shallow pockets so there's no real danger of being sued over it. I don't recall how I found out about the patent, but it certainly wasn't from looking through granted patents.
The point being it's not that difficult to infringe on someones software patent and have absolutely no idea you've done so. It wouldn't surprise me in the least if I learned I've personally written code that infringed on dozens of other software patents. I'd be extremely surprised if the libraries I use every day didn't infringe on at least one software patent.
Re:Copyright argument is not convincing (Score:5, Insightful)
What is the greater tragedy?
Blizzard and Microsoft re-invent their gaming tech.
or
Blizzard and MS are at the mercy of Electronic Arts because EA managed to patent something that each could re-create in isolation?
Patents are meant to prevent wasteful re-invention or avoid the extreme case when re-invention is not likely.
The problem with patents today is that patents are being granted for trivial and obvious things that could be easily re-invented by a few undergraduate students.
Re:Yes, patent system not meant for software paten (Score:3, Insightful)
Copyrights are not enough. If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here. Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product. Therefore having patents is necessary.
Re:Copyright argument is not convincing (Score:3, Insightful)
The reason algorithm patents (also part of the "software" patent suitcase) have long been acceptable just about everywhere
Well, no. The real software patents have only been acceptable in the US since State Street (Diamond vs. Diehr was about curing rubber, except that the rubber curing was software-controlled; i.e., the patent claimed a process for curing rubber, the fact that it was computer-controlled was just an aside and not central to the patentability). State Street was in 1998.
Both in the US and in Europe, there is still a lot of controversy about software patents till today (this paper only confirms that). India didn't go exactly all the way either during its last patent reform. Except among patent attorneys (although amongst them you also have excetions), I'm not sure where this general acceptance would be.
is that they are strict abstractions of novel circuits (patentable material in virtually every country).
Biochemical processes are also patentable material in virtually any country, but that does not mean that anything you can do with your brain automatically is a patentable process. Mechanical devices are patentable material in (virtually?) any country, but that does not mean that the abstractions of what you do with a piano (music) automatically is a patentable process.
The whole point is that these generic circuits indeed don't do anything but perform some abstract algorithm. Adding the generic circuit shouldn't suddenly make the novel algorithm patentable, not any more than a "piano + sheet music" becomes a "new, patentable piano" because the sheet music is just an abstraction of a mechanical process. But I guess I shouldn't give the RIAA new ideas...
As a general observation, most proponents of software patents are thinking of algorithm patents while most opponents of software patents are thinking of business method patents.
I think you observed that wrongly. Most opponents I know are opposed to claims on stuff that is normally not patentable, but suddenly does become patentable by adding "performed by a computer". Compare to the rubber curing from Diamond vs. Diehr: rubber curing is also patentable subject matter by itself.
Re:Cato Rocks (Score:4, Insightful)
So far, I think the only thing stopping patent trolls have been that companies that do make useful products have more resources, better legal department, and bigger war chest (yay, capitalism).
But the way lawyers have been getting their way in everything, especially in the D.C., who knows how long this will last.
Re:Copyright argument is not convincing (Score:5, Insightful)
Well, I don't agree with patenting algorithms either.
I think when you think of an algorithm, you have in mind something like an image recognizing algorithm that took years to perfect.
But when I as a developer think of an algorithm I think of very basic building blocks, like binary search, quicksort, hashes, RLE compression, Hamming code. If any of those was patented progress would get slowed down for years.
It can get even simpler than that. Something trivial like "if( there_is_data_to_print && there_is_paper && there_is_ink ) print_document()" is an algorithm.
Allowing patents on this means giving somebody the ownership of a piece of math. That something could be illegal to calculate without paying somebody is completely insane IMO.
As a developer I say: I don't want software patents in any shape or form. Not of the "business method" sort. Not of the "algorithm" sort. There should never be such a thing as a line of code that can't be written without paying somebody for a license. Period.
Re:Yes, patent system not meant for software paten (Score:4, Insightful)
It is NOT fine for software, but certainly it is NOT fine for medical drugs. Can anybody else enhance failing Tamiflu now when Roche holds all the key patents? Thousands might or have to die because Roche is blocking others from the drug developement, it might not be so, but certainly possible. Similar in software, I have to pay $600 for Adobe CS4 as nobody can't produce similar tools because Adobe have their 'patent portfolio' there.
Patent Terms: The problem (Score:1, Insightful)
Re:Excellent, but... (Score:4, Insightful)
do you really expect rational arguments in favor of the public good to be of any help against entrenched interests in this matter?
Rational arguments that are logically sound and easily understood actually are of help in this matter.
No matter how powerful entrenched interests appear to be, their power is dependent upon a majority of the people tolerating or being ignorant of their bad behavior and its consequences.
Convince enough of the people, with sound argument, that they are being negatively impacted and they will raise hell until the situation is remedied.
Politicians may be bought and sold by the special interests but ultimately, if the people become angered enough to speak up and act, the pols do what their constituents demand. Why? Because they can't enrich themselves if they get kicked out of office.
There's a reason that the entrenched powers seek to control the flow of information and, subsequently, to control public perception by way of opinion makers, so-called "experts" and commentators, who dictate the terms and content of both sides of the argument.
Think about it and you will quickly see why "rational arguments in favor of the public good" are important.
Hint: "It's simple - free your mind and your ass will follow." -- Junior, Platoon
Re:Yes, patent system not meant for software paten (Score:5, Insightful)
"If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here. Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product."
I missed the part where that's a bad thing.
Re:Yes, patent system not meant for software paten (Score:5, Insightful)
Copyright is both a positive right (it gives the author the right to distribute and sell his product under his own conditions) and a negative right (you can forbid others to do certain stuff with your copyrighted work).
No, copyrights are purely negative rights. They permit the author to forbid others from doing certain things with their work under certain circumstances. But they provide the author no affirmative rights to do anything with his work. An author's right to create or publish a work is an exercise of his right of free speech and press, no different than if he were to use the work of another in a manner not prohibited by copyright. In the US, this right is guaranteed by the federal First Amendment and by similar provisions at the state level.
This is why, for example, an author could create obscene works, or child pornography, or libel, and have a perfectly valid copyright on them (there's no morals clause to what is eligible for copyright), but not be allowed to publish or perhaps even possess copies.
Re:Yes, patent system not meant for software paten (Score:3, Insightful)
Copyrights are not enough. If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here. Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product. Therefore having patents is necessary.
At which point he's put in at least as much effort as you did (reverse engineering is hard). Which means that he can't unfairly undercut you, so the only thing patents would do is hinder progress by letting you sit on your ass for 20 years.
Re:Excellent, but... (Score:3, Insightful)
Hilariously wrong. Cato is a *libertarian* think tank. They have next to no influence, compared to the usual K-street actors (AARP, unions, industries of all kinds, trial lawyers, environmentalists, etc.)
Think about it: What libertarian policies have you seen Congress adopt recently?
- Alaska Jack
Re:Yes, patent system not meant for software paten (Score:4, Insightful)
Since State Street, there has been immeasurable innovation in the field of software.
That is entirely meaningless. What you need to measure is (1) how much of that innovation would not have happened without patents, and (2) how much other innovation would have happened without patents.
Figure out how much software there is where once you know what it does or how it works, re-implementing it would take 100x less effort.
Figure out how much software was lost due to "chilling effects" where people are afraid to do anything, and how much was outright killed (like for example Blackboard has been trying to do to everyone else in that industry).
I'm guessing that (1) is very very small, and (2) is significantly bigger but still somewhat small when taken as a fraction of all software.
Re:Copyright argument is not convincing (Score:3, Insightful)
I don't have time for a proper reply right now, but I'll say this:
I think that if patents ever worked, they have stopped doing what they were intended to do. So I'm skeptical about the usefulness of having patents at all.
That said, I'm only an expert in my own field, and I'm completely certain that I don't want them there. And note that I'm somebody who could supposedly benefit from their existence.
Re:Excellent, but... (Score:0, Insightful)
Libertarianism is anarchy for rich people.
Re:Yes, patent system not meant for software paten (Score:4, Insightful)
Where do individual authors get off thinking that their incremental improvements on the ideas of other inventors which they released out into the world as a working product get to keep other people from making incremental improvements on top of it and distributing their own products?
Where do authors get off thinking they are doing more than riffing off someone else's chord?
And where do they get off thinking the government needs to enforce a monopoly for them on these derivative ideas?
Re:Yes, patent system not meant for software paten (Score:5, Insightful)
Your statement insinuates the reverse engineering person somehow has legal rights to the work of others just because reverse engineering the invention is hard.
No.
I am saying that they have that right by default (because knowledge fundamentally cannot be owned), and that reverse engineering being hard means that the fundamental justification for the patent system ("to promote the progress of science and the useful arts") cannot justify taking that right away in such a case.
All patents do is ensure the inventor, the person giving the benefits, is adequately compensated for his work, that's all.
No, they do not. They attempt to do so, but don't do a very good job and have a huge number of bad side effects (like blocking other inventions, turning the common case of simultaneous invention into a lottery, adding overhead to basically all research, etc).
Re:Excellent, but... (Score:3, Insightful)
Libertarianism is anarchy for rich people.
Or a mechanism for poor people who value their freedom more than they covet the rich person's fancy house or SUV.
I'll take my civil liberties over governmental attempts to correct injustice (which usually accomplish nothing more than to shift the injustice around), thank you very much.
Tort reform (Score:4, Insightful)
The only ones I could see supporting software patents are some patent lawyers.
Well, then we are screwed, because tort reform of any kind certainly isn't in the interests of the current political party that happens in be in power in Washington.
Let me first get this out of the way, I don't consider patent reform as being anything like tort reform. And I certainly don't want to make it easier for someone to get away with messing up a person's life. Because of someone's recklessness I was left with a disability when I survived an injury I wish I had died from.
On second thought, I'm too angry to recall what I was going to write so there is no follow up.
Falcon
Re:Yes, patent system not meant for software paten (Score:4, Insightful)
Nobody is asking for a handout, just what is rightfully, and justly owed.
You ARE asking for a handout and what is not rightfully yours, a monopoly. Information in not owned by anyone. If you feel you'll miss out by sharing your ideas then don't share them. Once you do share them you still have them, but so do others.
Falcon
Re:Excellent, but... (Score:3, Insightful)
Re:Excellent, but... (Score:5, Insightful)
It's not really an either/or. Most classical liberals were in favor both of freedoms in general and modest social safety nets. When Adam Smith, Thomas Jefferson, etc., were railing against government, it was against the police-state style of government on the one hand, and distorting interventions into the economy like mercantilism on the other hand. They weren't against government using tax revenue to produce public goods, like roads, bridges, ferries, public fountains, orphanages, public schools, etc.
Hmm. (Score:3, Insightful)
Yeah, we should ignore all those hopelessly biased programmers, and listen to totally impartial you.