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."
Re:Yes, patent system not meant for software paten (Score:1, Interesting)
You bring up an interesting point: I would think a software creator would prefer a copyright over a patent because copyrights last much longer even though they are not as encompassing - from what this layman understands (IANAL).
Re:Excellent, but... (Score:5, Interesting)
Even from that perspective, it might be of some use. I'm not always a big fan of the Cato Institute, but they're influential among free-market conservative politicians. When it comes to entrenched interests with lots of lobbyists, Cato is one of them, so them lining up on this side could be useful. Of course, it remains to be seen how strong the support is--- will Cato actively lobby against software patents, or just publish the occasional article?
Copyright argument is not convincing (Score:5, Interesting)
This particular argument from the article is oft-repeated but weak:
"Software developers already enjoy strong copyright protections for their work, rendering patent protection largely redundant."
The exact same argument could be made for several classes of patent, such as chemical process patents, that people seem to generally consider legitimate patents in pretty much every country that has patents. If I am to believe that this is a compelling argument against software patents, then it is also a compelling argument against some other patentable areas. (Most arguments against software patents have this feature.)
On the other hand, a much more compelling argument can be made against "business method" patents (a subset of the suitcase called "software" patents) because they do not strictly define a machine. The reason algorithm patents (also part of the "software" patent suitcase) have long been acceptable just about everywhere is that they are strict abstractions of novel circuits (patentable material in virtually every country). 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. The ambiguity of the term "software patent" muddies the context and makes intelligent discussions more difficult. It would help if everyone was more precise in their selection of terms.
Re:Yes, patent system not meant for software paten (Score:1, Interesting)
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.
[Citation needed].
Since State Street, there has been immeasurable innovation in the field of software. You've got nothing to back up this assertion.
There is no shortage of innovation because of lack of progress. If one person doesn't think of it, another one will.
The same could be said about any field of invention, including machines and compositions of matter.
Also, the first sale doctrine doesn't work.
... because it doesn't apply to patents. Probably, you're just including this to enlighten laypeople on Slashdot. I hope. First Sale Doctrine is in the realm of copyright.
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.
Under what right? It's not First Sale. Rather, it would be a contractual right under our license (or assignment) agreement. On the other hand, you could sell me the right to say, hang your patented resistor in my "museum of electronics", while simultaneously not waiving your right to sue for infringement if I start using the thing as a resistor. Patent rights are significantly stronger than copyright, which is one of the reasons they're time-limited.
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.
Well, you could read the claims of the patent. That would make it very easy to figure out whether your program is off the hook. Sure, infringement analysis is still a two-step process, but it's not nearly as impossible as you, a patent attorney, claim.
Finally, software patents are bad (with so called "wish" claims).
Yes, in the same sense that mere diagnostic patents are bad. Sure is a good thing that current practice is moving away from those (and sure is a bad thing that SCOTUS didn't take it up in Metabolite). But that doesn't make all software patents bad, which is what you asserted.
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.
If you got a patent on anything that took you 5 seconds to come up with, I think you're going to face severe problems in any suit over whether it's invalid over 35 USC 112. I mean, seriously, you think that something that takes someone skilled in the art 5 weeks to implement has been adequately described?
I've got a friend who just filed a cover sheet provisional for an invention... Now, he says, he just needs to find a programmer to design and write his software. See the problem? Same thing with your 5 second idea, unless it's so incredibly revolutionary yet simple that you can describe it in two sentences. And I find that unlikely.
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).
I don't see why, particularly in light of your unsupported assertions above. Maybe an argument can be made (I would) that software patent
Re:Anti-patent whining (Score:2, Interesting)
Lots of small businesses get caught in the crossfire. AllMyData.com, a small company, along with several others, is being sued with BestBuy, over as general a thing as network backup ( http://dockets.justia.com/docket/court-txedce/case_no-2:2009cv00249/case_id-118157/ ). Small companies don't get sued directly as often since they aren't as lucrative targets, but they can still suffer when trolls go after the big guys.
Re:Anti-patent whining (Score:1, Interesting)
As for software, I fail to see how software is materially different from other patentable methods. That is not to say I necessarily agree with SW patents, I just don't think it makes sense to create a bright line rule against software patents. Many of the arguments advanced for preventing software patents are equally applicable to other methods.
The great thing about the patent system is that they disclose to the public new inventions to advance knowledge, and they expire. Part of the problem with software patents is that they are a relatively recent development do to a change in the judicial doctrine of patentable subject matter. If the courts would have gotten it right to begin with, allowed software patents from the start, we would now have a richer public domain (of patents and literature based on software patents) by which weed out crappy software patents.
Re:Yes, patent system not meant for software paten (Score:5, Interesting)
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.
[Citation needed].
Here's a bunch of citations [ffii.org] I once collected (note that it also includes a few opinions of political committees, but those are clearly marked).
Since State Street, there has been immeasurable innovation in the field of software. You've got nothing to back up this assertion.
I think we can indeed agree that software patents have not killed the software industry. That's however not a very strong argument if you claim that software patents are necessary or even helpful.
There is no shortage of innovation because of lack of progress. If one person doesn't think of it, another one will.
The same could be said about any field of invention, including machines and compositions of matter.
It's however doubly so applicable to software, because software innovation requires much less investment in materials, works with an idealised abstraction (rather than with finicky physical bits), and consists almost exclusively of incremental innovation. A.o., the FTC report and the report by the National Research Council cited above go into more detail.
Well, you could read the claims of the patent. That would make it very easy to figure out whether your program is off the hook.
Of "the" patent? You mean of all the granted patents, right?
And actually, the risk of whether or not you infringe on a patent (software or otherwise) is simply not manageable in practice. How do I know? Because you cannot insure yourself against such risks. AIG, Lloyds and others have tried for a short while to offer such policies, and suffered losses up to 3000% [edri.org]! So if even those guys specialised in risk management can't determine the risk of infringing on a patent, what makes you think Joe the Programmer can do so with any degree of accuracy?
Re:Yes, patent system not meant for software paten (Score:3, Interesting)
Here's a bunch of citations [ffii.org] I once collected (note that it also includes a few opinions of political committees, but those are clearly marked).
Thank you for that... I'll have to read through them. Will get back to you.
Since State Street, there has been immeasurable innovation in the field of software. You've got nothing to back up this assertion.
I think we can indeed agree that software patents have not killed the software industry. That's however not a very strong argument if you claim that software patents are necessary or even helpful.
Yes, but it refutes GP's argument that software patents are bad per se. It's equivalent to an assertion that if we didn't have the death penalty, there would be a thousand-fold increase in the murder rate. Sure, that's an interesting thought, but there's no evidence whatsoever, so on its own, it doesn't really mean much.
The same could be said about any field of invention, including machines and compositions of matter.
It's however doubly so applicable to software, because software innovation requires much less investment in materials, works with an idealised abstraction (rather than with finicky physical bits), and consists almost exclusively of incremental innovation. A.o., the FTC report and the report by the National Research Council cited above go into more detail.
Sure, but this goes to my later statement that software patents may deserve a shortened term. It doesn't support GP's argument that software needs no patent protection because, after all, it would get invented eventually.
Well, you could read the claims of the patent. That would make it very easy to figure out whether your program is off the hook.
Of "the" patent? You mean of all the granted patents, right?
This was a reference to GP's argument that it was impossible to determine if you'd infringe a patent. Which I find a bit disingenuous, him allegedly being a patent attorney.
And actually, the risk of whether or not you infringe on a patent (software or otherwise) is simply not manageable in practice. How do I know? Because you cannot insure yourself against such risks. AIG, Lloyds and others have tried for a short while to offer such policies, and suffered losses up to 3000% [edri.org]! So if even those guys specialised in risk management can't determine the risk of infringing on a patent, what makes you think Joe the Programmer can do so with any degree of accuracy?
Joe Shmoe gets an insurance policy from Lloyds to cover him in case he infringes... At that point, he's indemnified. Therefore, he performs no due diligence, because it's expensive and he's fully covered against loss. I don't think it's particularly dispositive that people who are fully insured against any sort of loss act riskier than those who aren't.
Furthermore, while Lloyd's may be specialized in risk management, due diligence with regards to patents is another field entirely, requiring claim construction expertise rather than statistics.
Re:Copyright argument is not convincing (Score:4, Interesting)
This is incorrect. A compression algorithm has a strict definition for all use cases, a set of input bits mapped via specified transformations to a particular set of output bits. This is no different than a chemical process patent, which specifies the inputs and transformations to generate the output; it says nothing about the specific plant implementation or similar transformations that work on different inputs or generate identical outputs.
What are the logical transforms and the input and output bit set pattern for one-click shopping? What is a universal boolean logic for selling pet food on the Internet? The very reason business method patents are being questioned is because no such specification exists or can exist for a useful implementation; any specification strict enough to be reducible to a machine would also be too narrow to have any value. In short, business method patents lack sufficiently strict specification to be directly mapped to a machine. That is a rather important difference.
Business methods patents are considered bad because in order for them to be useful as patents (i.e. not trivially worked around), they also have to be vague enough that no strict machine specification is possible.
Re:Yes, patent system not meant for software paten (Score:2, Interesting)
Of course, I'm serious. Your statement insinuates the reverse engineering person somehow has legal rights to the work of others just because reverse engineering the invention is hard. That's like saying robbing banks is okay because breaking through vault doors is hard.
Government and business want innovation to gain more power and wealth. The consuming public wants innovation to improve their life, by making certain tasks easier or more convenient. But where do government, big business, or consuming public get off thinking they have a natural right to these innovations, to get them for free? All patents do is ensure the inventor, the person giving the benefits, is adequately compensated for his work, that's all. Without patents, the inventor is just a slave, working for free to improve the life of others, but receiving nothing in return.
Re:Yes, patent system not meant for software paten (Score:3, Interesting)
> 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.
Admittedly, this applies directly to only the US (as far as I know), but in America, patents are constitutionally justified on purely utilitarian grounds. In theory, all it would take to completely abolish many patents would be a Supreme Court ruling that one or more laws passed by Congress empowering the USPTO to act on its behalf, and the policies enacted to enforce those laws, fail to advance this purpose (and ESPECIALLY if they actively harm it).
This is in direct contract to continental Europe, where they're historically been viewed as a moral right grounded in natural law.
Plus, it's not like decompiled code would be completely without protection just because it's not a literal copy of the original program code. If you disagree, just TRY publishing a book that even vaguely involves a young sorcerer named "Harry". Or, for that matter, a rodent named 'Mickey'. Or, for a really great double-whammy from two sets of lawyers, a teenage gerbil who goes to sorcery school and plays a lacrosse-like game on flying brooms that walk and carry buckets of water in their downtime...