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Recipient of First Software Patent Defends Them 392

Posted by kdawson
from the semper-fi dept.
Arguendo writes "Martin Goetz, who obtained the first software patent in 1968, has penned a thoughtful defense of software patents for Patently-O. Goetz argues that there is no principled difference between software and hardware patents and that truly patentable software innovations require just as much ingenuity and advancement as any other kind of patentable subject matter. The Supreme Court is of course currently considering whether to change the scope of patentable subject matter in the Bilski case, which we've discussed before." Does it weaken Goetz's argument that his description of the software lifecycle harks back to the waterfall days and bears little resemblance to current development practice in open source and/or Internet contexts?
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Recipient of First Software Patent Defends Them

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  • by dintech (998802) on Tuesday December 01, 2009 @06:29AM (#30281246)

    Patents by themselves weren't a problem back in 1968 and shouldn't be problems now either. The issue is how they are used as legal clubs to beat down competition with or simply as a way to make money through litigation alone.

    • by Tim C (15259) on Tuesday December 01, 2009 @07:12AM (#30281454)

      Software is already protected by copyright, and should not be protected by patents. If you come up with an amazing new algorithm your implementation is protected, and cannot be copied by other people.

      Patents are required on physical objects because they are not covered by copyright, and so absent patent protection an engineer could simply disassemble your new vacuum cleaner (for example) and produce a clone, cheaper than yours as they don't have to cover the R&D costs.

      • by NickFortune (613926) on Tuesday December 01, 2009 @07:23AM (#30281506) Homepage Journal

        Indeed. I though TFA was very weak. His points were:

        1. If you can do it in electronics, you can do it in hardware: the electronics would be patentable
        2. Software patents can make a shitload of money for someone
        3. I think software patents are pretty neat!

        Only the first point is anything resembling an argument, and that one we've heard a dozen times before.

        If anyone wants a soild exploration of what should and should not be considered software, and why it ought not to be patentable, I'd recommend PoIR's An Explanation of Computation Theory for Lawyers" [groklaw.net] over on Groklaw. It's well-researched, well-argued, and informative.

        • Re: (Score:3, Informative)

          by Lundse (1036754)

          Since we're exchanging links - if anyone wants to go really nuts over the matter of what knowledge can be owned and how, there's this philosophy thesis:
          http://www.archive.org/details/OwnershipOfKnowledgeIsThereANaturalRightTointellectualProperty [archive.org]

          Full disclosure: it's mine.

          • by LordAndrewSama (1216602) on Tuesday December 01, 2009 @09:12AM (#30282108)
            Mine too now, Mwuhahahahaha, fool, I've just robbed you blind!
            • Re: (Score:3, Funny)

              by CodeBuster (516420)
              I have a patent on plagiarism and I want a license fee of $23,148,855,308,184,500 for the use of my valuable intellectual property.
          • by HungryHobo (1314109) on Tuesday December 01, 2009 @12:47PM (#30284726)

            The problem isn't software patents, hell every now and then I see a really fantastic piece of code and think "I'd have never thought of that in a million years". Sometimes we see the software equivalent of the ball-bearing, simple, elegant but not obvious until someone comes up with it.

            The problem is the hulk of intentionally obfuscated legalese in software patents which is utterly useless to an engineer trying to duplicate what's being patented.
            The problem is not including the actual source code in the patent.
            The problem is patenting a general idea rather than an exact way of doing it.
            The problem is flow charts with descriptions of what some section of what you're patenting does because while you can engineer around an innovative break design in a car you can never engineer your way around a box in a flow chart reading "slows car down".

            The problem is the bastardised combination of patents and copyright software enjoys.
            Pick one or the other damnit.

        • Re: (Score:3, Interesting)

          by tixxit (1107127)
          I like the article (read it before) and it gives a good intro to the theory of computation, but I am not sure the fact that algorithms are "discovered" should decide whether it is patentable. By the same token, any physical invention was simply a discovery of a particular combination of matter. The spirit of patents is to reward people for their "inventions" in order to spur innovation. It is certainly debatable whether people need a monetary reward in order to innovate (experience would tell us otherwise),
          • My basic argument against patents has always been that with 6 billion people on earth, it almost always benefits more people to allow the completely free exchange of ideas. As you mentioned, there are many things that "you'd never think of in a million years", but those same things might be completely obvious to a very smart person. The problem with patents is when a novel, useful innovation is completely obvious to at least *two* smart people; at that point the patent system is broken. Simply because on
          • I like the article (read it before) and it gives a good intro to the theory of computation, but I am not sure the fact that algorithms are "discovered" should decide whether it is patentable.

            Well, I think the main point he's making is that software programs are demonstrably equivalent to Turing machine, lambda calculus expressions and effective methods. Effective methods have never been patentable (I'm not sure if business method patents qualify however) and lambda calculus expressions are unquestionably

        • by Absolut187 (816431) on Tuesday December 01, 2009 @12:25PM (#30284426) Homepage

          PoIR's main point is provably false in this case.

          PoIR says:

          I see the situation like this. The authors of legal briefs and court rulings have enough of an understanding to feel confident they can write meaningful arguments on the topic. But yet they do not understand computers and software well enough to reach technically correct conclusions. The unfortunate result is legal precedents that do not connect with reality.

          A simple google search revealed that the attorney arguing this case before the Supreme Court has a BS in Electrical Engineering from Duke, and a MS in Computer Science from Johns Hopkins.
          http://www.finnegan.com/MichaelJakes/ [finnegan.com]
          And he is arguing in favor of patent-eligibility for Bilski's method (which isn't even tied to software, remember).

          True, the people *deciding* the case is a different story. The Supreme Court's decisions do indeed reflect a lack of understanding. In Benson they obviously didn't understand what a re-entrant shift register is.

          But the problem here is not as simple as "lawyers don't understand computers." (no matter how much the geek community would like to pretend that it is). Its just not that simple. I've spent a lot of time thinking about this issue and there is just no easy answer.

          FYI - I'm a patent attorney with a BS in computer engineering and my main practice is computer and software patent prosecution. I've programmed in Java, C, Assembly, etc. I've designed a simple pipelined (5-stage) CPU. I know what software is.

          PoIR also claims that "All software is discovered and not invented" and that this is true "without a shred of doubt."

          This unsupported claim begs the question - where is the line between discovery and invention. To posit that software is by definition NOT invented, and to conclude that software is not inventive, is obviously circular reasoning.

          PoIR then goes on to ramble about Godel's numbers, and Turing Machines. While neat, these really have nothing to do with the issue.

          • PoIR's main point is provably false in this case. ...

            A simple google search revealed that the attorney arguing this case before the Supreme Court has a BS in Electrical Engineering from Duke, and a MS in Computer Science from Johns Hopkins.

            Well, if that was his main point, then you might be on to something. Not that finding a single counter example really says anything about the general state of affairs, of course.

            PoIR then goes on to ramble about Godel's numbers, and Turing Machines. While neat, these

            • Re: (Score:3, Informative)

              by Absolut187 (816431)

              I'm sorry, PoIR fails.

              Take this statement:

              For example consider this sentence from In re Alappat:

              We have held that such programming creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.

              In a single sentence the court tosses out the fundamental principle that makes it possible to build and sell digital computers. You don't need to create a new machine every time

              • Re: (Score:3, Insightful)

                by NickFortune (613926)

                PoIR completely misunderstood the court.

                I don't think he misunderstood the court. I think he's saying that the court missed the fundamental point about computers. A judgement like that is a bit like saying that a printing press becomes a new machine whenever you load a new configuration of type into it, and therefore that books should be patentable.

                PoIR fails. Miserably. Sorry.

                I disagree, Still, if you really think so, I encourage you to comment as part of the Groklaw discussion. I'm sure PoIR is far m

              • Re: (Score:3, Insightful)

                by Alsee (515537)

                by programming a general purpose computer to perform a specific task, the programmer has created a new special purpose computer... The programmer has created a functionally (not physically) NEW MACHINE. It has new abilities.

                Pardon the pun, but that is patently absurd.

                Grab any handy common calculator. Press 2 multiply multiply 0 equals. You have now programmed that basic calculator, and by your own patently absurd statement it is a - and I quote - a "NEW MACHINE".

                With those four key presses you have programm

                • Re: (Score:3, Informative)

                  by Absolut187 (816431)

                  I don't think its absurd at all. I think the "programmed" calculator from your example SHOULD be patent- eligible .

                  What you're forgetting is: THAT DOESN'T EQUAL A PATENT.

                  Once the hardware you're discussing (say a casio calculator) is known, it is probably pretty obvious to use it to multiply by two. Therefore, the patent would be barred by 35 USC 103 (AND NOT 101). In fact, the instruction manual would probably explain how to use it to multiple by two, in which case it would flat-out anticipated under 35

      • by selven (1556643)

        In reality, cloning someone else's invention costs about two thirds as much as making it yourself. There's some types of knowledge that simply can't be pirated, like the engineers' experience with the invention that they themselves created.

      • by Mr2001 (90979) on Tuesday December 01, 2009 @07:58AM (#30281686) Homepage Journal

        Patents are required on physical objects because they are not covered by copyright, and so absent patent protection an engineer could simply disassemble your new vacuum cleaner (for example) and produce a clone, cheaper than yours as they don't have to cover the R&D costs.

        An invention that can easily be examined and cloned doesn't need patent protection.

        The term "patent" comes from the use of the word that means "apparent to everyone", as in "patently obvious". Patents further the useful arts not by enticing people to invent new things (when there's a problem that needs solving, people will solve it anyway), but by enticing inventors to share their knowledge: before patents, inventors were reluctant to share details of their inventions because they feared competition, so patents grant a temporary monopoly in exchange for disclosing those details.

        This rationale for patents rarely applies to software. A program has to be executable, and if a CPU can figure out how to make it work, so can a person. Even intentionally obfuscated software can be understood with moderate effort (see any warez site).

        • An invention that can easily be examined and cloned doesn't need patent protection.

          Did you mean to say "that can't easily be cloned"?

          • by mcvos (645701)

            An invention that can easily be examined and cloned doesn't need patent protection.

            Did you mean to say "that can't easily be cloned"?

            No he didn't. Read the rest of his post. It makes sense.

        • by vivian (156520) on Tuesday December 01, 2009 @09:58AM (#30282532)

          The way I see it, patents on software are wrong for two reasons.

          Firstly: The software is already protected by copyright, so there should not be "double" protection by also allowing patents.

          Secondly: Patents are supposed to be a "social contract", where the inventor publishes the details of how his invention works and thus improves the "state of the art", in exchange for a reasonable period of protection that allows the inventor sufficient time to get the product to market, recoup the cost of inventing it and making a profit. Society as a whole benefits because other inventors can then use the details to incorporate the ideas and mechanisms described in other inventions (possibly subject to obtaining a license).

          This works great for many inventions - but fails completely for software.
          The reason it fails for software is that most software patents are so obfuscated as to be practically useless to a programmer to build upon.
          How often do you actually see the source code for a software patent? I never have in ant of the software patents I have seen.

          Imagine if patents were allowed on artworks - should the first guy who paints a picture of a bridge then be able to prevent anyone else from painting a picture of a bridge? Of course there are many "prior art" examples of paintings of bridges, so it would not be allowed. What if it were something a little different? Eg. someone drawing a stick figure picture of a guy in a red shirt doing a handstand on a bridge? or the more generalised case of just a humanoid figure doing a handstand on a bridge? This is the sort of wording that many software patents have - even if following artists are able to paint much better pictures of people doing handstands on bridges.

          Worse yet, if you painted a picture of something entirely different, which just happened to have a picture of a guy doing a handstand on a bridge being one small element of the entire picture ( say, it's in the background or something) you would still be in violation of the patent - even though the handstand guy is just a tiny part of the whole.

          now programming is to a certain extent like art - there are many ways of implementing the same "idea", in many different languages, and in ways that are better than the originally scrappy code that might have been written. Whats more, there are so many elements that go into a program, it is all but impossible to search through all the possible patents it might potentially infringe. Software patents are not making it easier for programmers to write better programs, so therefore are entirely useless for "improving the art", and thus the social contract of exchange of information in return for a limited period of protection is broken.

      • Re: (Score:2, Interesting)

        by Miamicanes (730264)

        > Software is already protected by copyright, and should not be protected by patents.

        Right now, it's kind of like "pick your poison". The problem isn't so much patents *per se*, as the way they've been granted (ie, the ongoing clusterfuck caused by the Clinton-era USPTO during the dotcom boom, whose attitude was "grant 'em all, let the courts sort it out"), the fact that they can't be proactively challenged (you can only wait to be sued for infringement, and if the patent's owner drops the case at the la

        • by CastrTroy (595695)

          Do we *really* want software techniques to be legally protected *forever*

          Actually, the techniques of software wouldn't be protected, only your actually source code and the compiled binary. I you want to go write a program that does exactly the same thing as another program, you're completely free to do so. Be careful not to step on trademarks, but you are free to implement all the same algorithms, as long as you don't steal source code. I think copyright works a lot better for software than anything el

        • Re: (Score:3, Informative)

          by greensoap (566467)

          the fact that they can't be proactively challenged

          This is not correct. Any person can file a reexamination request and present a substantial new question of patentability with the USPTO. Here is a wiki link http://en.wikipedia.org/wiki/Reexamination [wikipedia.org]. So if anyone has some publication that should invalidate a patent, by all means attack it. Also, there a declaratory judgment actions that can be used to initiate a lawsuit before the patent holder sues you. However, the patent holder needs to take some action that makes the likelihood of a future lawsuit

      • by Lord Bitman (95493) on Tuesday December 01, 2009 @08:58AM (#30282028) Homepage

        You can patent a new type of hammer.
        If you draw a diagram of the hammer, that diagram is covered by copyright.
        You can use that diagram in a patent application, in which case the diagram cannot be covered under copyright.
        If you draw another diagram of the same type of hammer, that new diagram is covered by copyright.
        The hammer itself, that is, the physical thing that is a hammer, can neither be patented or copyrighted.

        The same logic should apply to software:
          - You can patent a new type of software algorithm.
          - If you write source code implementing that algorithm, that source code is covered by copyright
          - You can use that source code in a patent application, in which case the source code cannot be covered under copyright.
          - If you write a new implementation of the same algorithm, that new source code is covered by copyright.
          - The executable itself, that is, the black-box which tells you at most as little of the implementation details as a hammer would compared to a diagram of the hammer, can neither be patented or copyrighted.

        • Re: (Score:3, Interesting)

          by somersault (912633)

          The hammer itself, that is, the physical thing that is a hammer, can neither be patented or copyrighted.

          I think if we lived in a world where we had high precision multi-material 3D printers or Star Trek type replicators, we probably would have laws that copy protect physical objects. We have copy protection for information because it is so easy to copy, yet it is acknowledged by us humans to be valuable and most of us recognise that the creator should get first dibs on his idea.

          Why should an executable not be eligible for copyright, while a source file or digital image should be copyrightable? And what happen

          • Re: (Score:3, Insightful)

            by cpt kangarooski (3773)

            I think if we lived in a world where we had high precision multi-material 3D printers or Star Trek type replicators, we probably would have laws that copy protect physical objects.

            Maybe, but should we? If we made enough replicators so that everyone could have enough to eat, we would drive most farmers, ranchers, and professional cooks out of business. But I'd rather put them out of work than have people starve -- and at least the farmers et al wouldn't go hungry either.

            We have copy protection for informatio

      • by PMuse (320639)

        "Software is already [badly] protected by copyright, . . . If you come up with an amazing new algorithm your implementation is protected, and cannot be copied by other people [except by being rewritten entirely in a clean-room]."

        Copyright has serious failings when it comes to software. First, copyright automatically locks up all software forever (or, forever 20 years at a time) unless the author specifically gives a license. Second, a clean-room reimplementation of the functional elements can circumvent t

      • by Bazar (778572) on Tuesday December 01, 2009 @09:31AM (#30282242)

        If you come up with an amazing new algorithm your implementation is protected, and cannot be copied by other people.

        Wow, how did that get marked up. I'm really starting to wonder about the moderation system.

        There are so many examples in real life that contradict that.
        Lets start off with the bios chip in computers. That was copyrighted.
        They got around it simply by having 2 teams
        Team A disected the chip, and wrote the specs of what it did, and how it operated.
        Team B took the specs and had nothing else to do with team A, and using only those specs made a new bios chip that matched the specifications written.

        The courts decided that copywright didn't come into play, because they didn't copy the chip. (They indeed made their own version)
        If it was patented it would of been a different matter.

        Theres also the matter of the magic key that allowed decoding of HD-DVDs. I don't believe copyright is able to do anything about that (Although the DMCA might say otherwise, i'm unsure since its DRM and DMCA changes the game with DRM)

        You could also try talking to apple, about how their court case vs microsoft went when MS copied how apple looked.
        http://en.wikipedia.org/wiki/Apple_Computer,_Inc._v._Microsoft_Corporation [wikipedia.org]

        I could go on, but in short you can't copywright the look and feel of software either.

        So if the detailed innerworkings (or algorithms) aren't protected by copywright, and if the look and feel isn't protected either. What does copywright stop.
        It stops outright ripoffs and direct copies, but it doesn't stop other companies producing compeating products.

        Patents however do stop compeating products. (A little too effectivly some would argue)
        If the bios chip was patented, it would of been illegal.
        If it wasn't for the fact that the GUI had already been proven and demostrated by xerox before being handed over to apple. Apple could of patented the "look and feel".

        So back to the orginal point.
        Copywright Law protects you against people copying your software. It isn't very effective against people that DEVELOP compeating products. Patents are.

        You can hate or love what patents are, but don't be confused about the differance. To discard what patents because [software] copywrite exists, defeats the purpose of patents themselves.
        Reform is needed for both, but not an abolishment.

      • Re: (Score:3, Interesting)

        by mpe (36238)
        Software is already protected by copyright, and should not be protected by patents.

        Up until about 25 years ago it was quite hotly debated if sooftware (especially compiled object code) was actually covered by copyright law or not.

        Patents are required on physical objects because they are not covered by copyright, and so absent patent protection an engineer could simply disassemble your new vacuum cleaner (for example) and produce a clone, cheaper than yours as they don't have to cover the R&D costs.
      • by mcgrew (92797) *

        At least patents only last 20 years. Considering that for all practical purposes, copyrights are infinite, patents aren't really that bad.

        The two copyrights I registered are for software; they were registered in the early '80s and should be public domain by now. Instead, they are useless, as they are written for now-obsolete hardware.

        If patents lasted as long as copyright, technological innovation would come to a standstill, like art has in the last century.

        • by jedidiah (1196)

          The problem with patents is that they allow people to get ownership of the public domain. A patent not only gives you ownership of your own particular space opera but gives you ownership over ALL space operas everwhere. This is the problem of patents. For that reason, the "invention" needs to be something special. This is especially true as the rate of invention increases. Sloppiness that might have been OK in the anti-bellum period will cause mass unintended consequences now.

      • by Brackney (257949)

        What about embedded software? If I write code to perform a specific function in a physical device and someone else writes their own code to provide the same functionality in their own device then copyright protection is utterly worthless. Software patents for embedded applications (controllers, smart devices, etc.) make a lot of sense IMO.

    • by wrook (134116) on Tuesday December 01, 2009 @07:28AM (#30281524) Homepage

      I'm going to have to disagree with this.

      Software patents were a problem then and are still a problem now. Patents have always been a trade off. At one time everyone making inventions hid their work through secrecy and obfuscation. This is clearly their right and in order to protect the upfront investment in research and development it was necessary. Otherwise someone could use the information that other people had developed in order to create a product without the upfront investment. They could then undercut the initial inventor.

      The result of secrecy and obfuscation was that society couldn't build on top of new ideas. Progress could stall because only a few people knew how something worked. So a limited monopoly was granted to inventors in exchange for full explanations of their inventions. It was hoped that this monopoly would allow others to build on previous inventions and accelerate progress.

      This is fine when we are talking about real physical machines. We aren't giving monopolies on ideas, rather their expression in physical form. In the world of physics, only certain things work for a given problem. For example with velcro the hooks have to be at a certain angle and the loops have to be at a certain density. Nobody can patent the idea of a hook or a loop. But a specific physical arrangement of hooks and loops with a specific application is patentable.

      The problem with software is that it isn't constrained by physics. For any given problem there are many expressions that can work. Software *isn't real*. If my hooks and loops don't match up I can change the laws of physics to make them match. The work in developing software is *not* trying to discover the angle with which a hook must be made, but rather the sheer volume of describing the hook.

      Because people misunderstand the purpose of a patent, they believe that patents exist to protect the upfront investment of development. In this case, if it takes a year worth of work to type in the description of my hook, that hook must be worthy of protection. It is, after all, a considerable upfront cost in my act of invention. But the *specific description* of the hook (i.e., the source code) is not what they want to patent. After all, they already obfuscate it and have a copyright for it. It is amply protected. What they want to patent is the idea of a hook for a given application. *All* descriptions of hooks for that application are now forbidden.

      Now we could argue that some techniques are difficult to develop. This is true. But on a computer, all techniques are mathematical algorithms. These are not, and never were patentable. If we accept the argument that a computer program is a "software machine", then the patentable part must be the description of the algorithm in the computer. But this is already obfuscated, secret and protected by copyright. They wish a higher level protection on the concept itself. This is a problem because it has never been patentable (if you wish a reason, I direct you to read the original arguments given when instating the patent system).

      Not only are software patents a problem, their very nature is what is causing "bad patents" and "money through litigation" schemes. Any software patent must, by necessity, by overly broad and provide an opportunity for abuse. Not only should software patents be disallowed, but also "hardware" patents that can be fully implemented in software. To do otherwise is to fly fully in the face of the original intent of patents.

      • by Smegly (1607157)
        Hook analogy? What happened to wheels, or chassis even... no wonder nobody gets why software patents are anti-progress (as they were intended to be).
        Apart from that, great post!
    • by vtcodger (957785) on Tuesday December 01, 2009 @08:16AM (#30281796)

      ***Patents by themselves weren't a problem back in 1968***

      A common belief. But probably wrong. Patents are, and always have been, a dubious idea. I don't have time to write a real essay. But just one example. In the early 20th Century, many of the basic patents on aircraft technology were held, naturally enough, by the Wright brothers. However, a lot of the early aircraft were built by Glenn Curtiss who was unable to get a licensing agreement from the Wrights. Curtiss built his planes anyway using (and patenting) alternate technology where he could. The ensuing lawsuits dragged on and on, draining the resources of both parties and crippling the development of aircraft in the US because no one was interested in building aircraft until they knew who they had to pay for the privilege.

      http://en.wikipedia.org/wiki/The_Wright_brothers_patent_war [wikipedia.org]

      By the time World War I started, the US was years behind the Europeans in aircraft design. Congress eventually solved the problem by enacting compulsory licensing at a fixed royalty.

      How, exactly, did this mess -- which was far from unique -- benefit anyone?

      Of course, things are far worse today. The average patent is (deliberately as far as I can see) unintelligible, the claims absurd, prior art is ignored, stuff that is obvious to practicioners is patented, natural laws are patented, etc, etc, etc.

      IMHO, the patent system is broken. Badly broken. We would be well advised to carefully -- very carefully -- scrap the thing. Software patents would be a terrific place to start.

      • Re: (Score:3, Insightful)

        by BuR4N (512430)
        It sure is a doubled edged sword, but there is allot of success stories also, patents is a mechanism to keep competition "fair".

        Without patents, it would be even easier for medium/large/mega cooperation to prey on small companies inventions, I write even because just having a patent today do not mean that your immune against this behavior.
        • by swillden (191260) <shawn-ds@willden.org> on Tuesday December 01, 2009 @09:45AM (#30282374) Homepage Journal

          Without patents, it would be even easier for medium/large/mega cooperation to prey on small companies inventions, I write even because just having a patent today do not mean that your immune against this behavior.

          That's the oft-quoted theory. In practice, little guys almost never win in patent disputes. Instead, they're bankrupted by legal bills and never see a dime of the royalties they should get. In theory, patents should help the little guy. In practice, they favor large corporations.

        • by bit01 (644603)

          It sure is a doubled edged sword, but there is allot of success stories also, patents is a mechanism to keep competition "fair".

          Allowing one person to legally block 6,800,000,000+ others from doing something is hardly "fair". With that many people in the world independent reinvention is the rule not the exception and any patent system that doesn't take that into account is intrinsically unfair.

          Without patents, it would be even easier for medium/large/mega cooperation to prey on small companies inventions

      • by swillden (191260)

        IMHO, the patent system is broken. Badly broken. We would be well advised to carefully -- very carefully -- scrap the thing. Software patents would be a terrific place to start.

        I think there's a clear and simple test that allows us to evaluate the effectiveness of the patent system: Is it common for engineers to look for patents they can license rather than having to find solutions to their problems on their own?

        If the answer is "yes", then the system is working as designed, increasing innovation rather than stifling it.

        If the answer is "no", then the system is not encouraging progress.

        In the case of software patents, I think it is very telling that most software developmen

        • I think you may have your logic reversed. The key root of innovation is "nova" meaning "new". If an engineer is using the patent database as a library of solutions, then there is nothing new being developed. No innovation is happening. If the engineer develops something on their own, then innovation has occurred.
      • By the time World War I started, the US was years behind the Europeans in aircraft design. Congress eventually solved the problem by enacting compulsory licensing at a fixed royalty.

        This doesn't have much to do with patents, but rather war. If there hadn't been a world war, then Congress would simply have waited an additional 5 years for the patents to expire.

        Of course, things are far worse today. The average patent is (deliberately as far as I can see) unintelligible, the claims absurd, prior art is ignored, stuff that is obvious to practicioners is patented, natural laws are patented, etc, etc, etc.

        IMHO, the patent system is broken. Badly broken. We would be well advised to carefully -- very carefully -- scrap the thing. Software patents would be a terrific place to start.

        First, your point that the average patent is unintelligible is an argument under 35 USC 112 (written description); that the claims are absurd (what do you mean?) is most likely an argument under 35 USC 103; that prior art is ignored is an argument under 35 USC 102 and 103; that stuff is obvious is an argument under 35 USC 103... T

    • Recipient of First Software Patent Defends Them

      The winner of the first Mega Millions Lottery says state lottos are a good thing, too.

    • by mellon (7048)

      Patents were used that way in 1968, and in 1938 for that matter. So yes, patents are a problem, in the same way any weapon is a problem - if you put a loaded gun in the hands of a psychopath, don't be surprised when you get shot. When you put a patent in the hands of a greedy person, don't be surprised when you get sued.

      Goetz is right - as a matter of principle, software and hardware patents are no different. They are both taking something from the public and giving it to a private individual, and hen

  • by fatp (1171151) on Tuesday December 01, 2009 @06:29AM (#30281248) Journal
    The major problem is that most software patents were not awarded to truly patentable software innovations
    • by ranulf (182665)
      Absolutely. Things like RSA encryption are good examples of patents. Things like the XOR patent are bad examples when they are so trivial that anybody could come up with the same.

      The main problem is that patents aren't used to protect investment, they're used to stifle the competition.

    • by Nerdfest (867930)
      How about this test. Get 50 (and admittedly arbitrary, but probably affordable by the patent office) developers in the same field as the patent applicant and ask them how they'd solve the problem. If one of them comes up with the same solution, no patent for you. Beyond that, follow the normal approval process to cover the possibility that we have the wrong 50 developers, or that they're all having a 'stupid day' ... not that that ever happens to me.
    • by schon (31600)

      The major problem is that most software patents were not awarded to truly patentable software innovations

      As any true Scotsman would be able to tell you, that's not a problem.

  • I'd like to know (Score:3, Insightful)

    by Lord Lode (1290856) on Tuesday December 01, 2009 @06:29AM (#30281252)
    I'd like to know this guys opinion on straightforward software patents like "the hyperlink", the virtual "shopping cart", ..., and "patent holding" companies.
    • I'd like to know this guys opinion on straightforward software patents like "the hyperlink", the virtual "shopping cart", ..., and "patent holding" companies.

      Two things - first, he explicitly says in the article that he's not talking about business method patents. My guess is he'd be against them.

      Second, I'm almost certain that your primary problem with those isn't that they're software, but that they're "straightforward"... or, to use a better term, "obvious". And "obviousness" isn't part of the discussion over whether something is patentable subject matter.

      For example, say I 'invent' the waterwheel. It's well known and obvious, so there's no way I can get a

  • Sure (Score:2, Funny)

    by Anonymous Coward

    patents protect the little guy who can't afford lawyers from big corporations.

  • by Rogerborg (306625) on Tuesday December 01, 2009 @06:50AM (#30281330) Homepage
    I think that software patents are every bit as valid and valuable as every single patent on the wheel [google.com].
    • You are right, but I'm not sure if people will get your point or even if you understand your own point. There is no problem with software patents per se. The problem is that the people deciding if a patent will get approved or not don't seem to understand software well enough to make the decisions. They don't have the background, or ability and/or time to do the reasearch, so we end up with "one click" patents, which are essentially the digital equivalent of patents on the wheel.

      As your link to the Goog
      • Re: (Score:3, Interesting)

        by Znork (31774)

        There is no problem with software patents per se.

        There are always problems with patents per se, as they sub-optimize the free market. Some industry areas are just exposed to more damage; the shorter the development cycle and the more highly multi-functional/combinatory the segment is, the more problems you'll get as inventions that happen to incorporate something patented, or would combine some patented things become basically impossible to make, potentially slowing down development in some areas by decades

        • "There are always problems with patents per se, as they sub-optimize the free market.

          If you want to combine patents with a free market economy, the only way to do that ..."

          Let me know when you make up your mind ;-)

      • by Rogerborg (306625)
        It turns out that I did understand my own point, but, hey, thanks for taking time out from your busy designing schedule to belabour it to death. Appreciate that, homie.
        • "It turns out that I did understand my own point ..."

          No problem, I was glad to help. Your ego might want to look up the term collective ;-)

          You also may want to read the first half of my first sentence in my original post [slashdot.org] for further edification.

          Finally, I can't possibly belabour a point you never actually made. You made a statement that had implications. I elaborated , which turns out to not be a synonym for belabouring after all. I'll leave writing complete sentences as homework for you at your op

          • by Rogerborg (306625)

            Ah, logic. Logic is the beginning of wisdom.

            Aren't you supposed to wait for us to developer warp technology before you make first contact?

  • by Manip (656104) on Tuesday December 01, 2009 @06:51AM (#30281334)

    The big principle difference is that in the physical world we can discover new things and invent better ways to do existing things. I am yet to see a single software patent that I feel is really a new invention that requires protection. If someone can link me a software patent that they feel was a new invention and that others might benefit from then by all means, I am happy to be proved wrong...

  • Software is sometimes conceptualized as a machine, and machines are patentable, therefore software should be too.

    Software can be implemented in hardware, which makes it patentable even when it's not implemented in hardware.

    The following terms are common to both software and hardware manufacturers:

    research, competitive analysis, functionality, specifications, operational environment, operating characteristics, interfaces, modules, engineering, implemented, debugged, tested, quality assurance, alpha and beta testing, documentation, installation, training, OEM, component, system, re-packaged, maintenance, warrants, workmanship, guarantees, errors, defects, improved, enhanced, upgraded, and models

    and therefore the products of software companies should be patentable just like the products of hardware companies.

    Respectfully to Mr. Goetz, my reaction to his points is "So?". Analogies are aids to thought, not

  • Goetz argument falls short for the following reasons:

    1. He assumes that hardware patents are not as controversial as software patents and makes an appeal to equality. Who said hardware patents are off the hook?

    2. He claims that the ingenuity required to make hardware or software patents is the same. This is slightly different than a regular appeal to equality in my first observation in that the focus of the ingenuity, according to him, is the creation of the patent; however, patents were designed to s
  • The choice of implementation for computer functions is a pure economic choice which mainly has to do with cost, speed, and flexibility.

    That's absolutely correct. And the reason that people choose software when they can get away with it, is because it generally much cheaper, faster to implement and more flexible. Which in turn results in completely economic effects of patent claims that include software implementations compared to claims that only cover hardware implementations.

    The whole argument about software companies also performing state-of-the-art R&D should be irrelevant from a patents-point-of-view. Patents are not a natural right (they're not awarded because someone deserves them for whatever reason), but they are purely economic tools. And blunt and wide-reaching ones at that. Applying blunt and wide-reaching tools without discrimination just because some things are alike in terms of intellectual achievement does not necessarily have the same economic effects. Again: patents are not rewards, they're tools, to be applied with care where it makes macro-economic sense, not to protect certain business models at the cost of a huge overhead for an entire sector of industry.

    And according to various economic studies [ffii.org] (also includes citations from some political documents, feel free to ignore those), patents indeed don't have overall positive effects on in the software field. In fact, the 2003 report on innovation from the FTC [ftc.gov] came to the conclusion that patents are not very important to innovation in the semiconductor industry either (although slightly more so than in case of software, and their downsides are slightly less detrimental in that case). So the whole comparison with hardware and software does not necessarily lead to the conclusion that the author of the article envisions...

  • In practice, there is a world of difference.

    When you develop a drug or a new car engine, you have to invest hundred of millions of dollars. Spending a few millions on patent lawyering is nothing.

    I can spend a few weeks developing a program in my spare time for an investment of zero (0) dollars, and be infringing on some stupid patent without knowing it. I don't have a few millions laying around to pay some scumbag in a suit.

    And that's just one of many arguments against software patents. But that's the main

  • by MrMista_B (891430) on Tuesday December 01, 2009 @07:48AM (#30281622)

    All software is math, no exceptions.

    You can't patent math.

    Well, in the current state of things, you /can/ patent math, and that's something a lot of people are hoping is revoked.

    Imagine if something like calculus had been patented, or the quadratic equation?

    We'd be fucked, as a species.

    For a concise, well written and much elaborated explanation, see "An Explanation of Computation Theory for Lawyers": http://www.groklaw.net/article.php?story=20091111151305785 [groklaw.net]

    Now, that's written specifically for lawyers, but it should be clear enough, perhaps more clear because of that, for most of the Slashdot crowd to get it - all software is math, no exceptions, and math should not be patentable.

    • by Trepidity (597)

      Well, so is lots of other stuff patented, if you squint at it hard enough. Yes, all computing can be described at its base by computation theory, and is therefore math. But patents of physical machines are at their base usually also math: ultimately macroscopic physical phenomena are just derivable mathematical consequences of lower-level physics theories.

      The question is what level of ingenuity is worth patenting. I'm not sure that differs markedly. In both cases, it's more or less: is this truly a remarkab

      • by minsk (805035)

        Reality defines math. Math defines computer programs. It is a rather important difference.

    • We'd be f**ked, as a species.

      Too late!

  • Development Cycle (Score:3, Insightful)

    by Brett Buck (811747) on Tuesday December 01, 2009 @07:52AM (#30281646)

    Does it weaken Goetz's argument that his description of the software lifecycle harks back to the waterfall days and bears little resemblance to current development practice in open source and/or Internet contexts?

            In a word, no. It doesn't matter how or in what context you come up with something, it's whether it's sufficiently unique or not. And in any case, I am not sure why you refer to "current development practice" since that varies wildly from application to application, and the "waterfall" process is certainly still in full force for many serious programming applications.

            Brett

         

    • it's whether it's sufficiently unique or not.

      His point was more abstract than that. He wasn't referring to the uniqueness requirement of patent-ability, but rather to the "promote progress" justification for the existence of software patents in the first place. Software patents have the potential to hobble open collaborative software development to the point of extinguishing it. Given how much more software now is open source than was in 1968 - and how the waterfall cycle (a complete joke in and of itself [tarmo.fi]) is practically never part of such developm

  • Does it weaken Goetz's argument that his description of the software lifecycle harks back to the waterfall days and bears little resemblance to current development practice in open source and/or Internet contexts?

    It's not the design practices per se, but rather the software market that does. It is significantly easier to build an independent, popular product today than it was 40 years ago. The main argument for patents is to protect a company's investment in the risk of doing R&D to get a product to

  • he's actually right (Score:3, Interesting)

    by Tom (822) on Tuesday December 01, 2009 @08:15AM (#30281786) Homepage Journal

    No, really. And I say that as an outspoken opponent of software patent.

    His most important sentence is It is obvious that software products are not "software ideas". - and that's what's wrong with the patent system. A hundred years ago, you had to submit a working model to get a patent. These days, you can patent software ideas and business processes.

    When we speak about "software patents" we are really talking about monopoly rights on algorithms. And that's as stupid an idea as a copyright on a number.
    What the author apparently means when he talks about "software patents" is a complete product, a working implementation of a concept that can be demonstrated to do what the list of claims contains. That's a bit of a different animal than about 99.999% of the software patents issued during the past 10 years.

    And I agree that a bit of protection on that would be nice for those who invented it. We can discuss whether or not patents is the right tool, or copyright, or some new form, but that's not important.

  • The main difference between software and hardware development is not how clever once can be in either medium, but in how difficult it could become or how much dependency there is with previous works. In hardware patents, there will still be some dependency on previous works, but not so much as those things that are typically covered by copyrights such as software or other language based works.

    But if the arguments are "because software can be clever" or "because it can make a bunch of money" then it's about

  • We all bemoan the software patent situation largely because it's a market with nearly no barrier to entry otherwise, but the system isn't good as it stands for physical inventions either. Infringing a copyright is hard to accidentally do, but infringing a patent accidentally represents a huge risk to someone. Even if you didn't think it was patentable, if it hits you, it will be pricey to defend yourself even if right. Exacerbating this problem is that patents are extremely long lived given the general r

  • Goetz argues that there is no principled difference between software and hardware patents. In that respect, he is right. There is no fundamental reason why an invention has to be made of something physical. But that is not really the point.

    Patents, like copyrights and trademarks, grant the user rights by taking rights away from the rest of us and granting the inventor or composer a monopoly. In some cases, this may be necessary or desirable to protect the creative individual from the clutches of capitali

  • Goetz argument (Score:2, Interesting)

    by ath1901 (1570281)

    Goetz argument isn't weakened by using the waterfall model. He's just comparing phases of the waterfall model traditional manufacturing so that's hardly an argument at all.

    His argument seems to be that since you can implement any algorithm in hardware just as well as in software, both ways are equal and thus patentable (given the current patent laws).

    His mistake is that you can not and should not ever be able to patent algorithms (since it's math), only a specific physical machine that "executes" the algori

  • Any physical system requires significantly more investment to create, requiring raw materials, machinery, etc. and the marginal cost of production is non-zero.

    By comparison, software costs a pittance to start writing, effectively just being the cost of a computer, say around $2,000, and has a zero marginal cost of production. This is orders of magnitude lower than any material good, and why software already has a breakneck pace of innovation: because new players entering the game require little startup capi

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