Recipient of First Software Patent Defends Them 392
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?
Patents aren't the problem (Score:5, Insightful)
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.
truly patentable software innovations... (Score:5, Insightful)
I'd like to know (Score:3, Insightful)
Re:Patents aren't the problem (Score:5, Insightful)
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.
Re:Patents aren't the problem (Score:5, Insightful)
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.
Development Cycle (Score:3, Insightful)
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
Re:Patents aren't the problem (Score:4, Insightful)
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).
Re:Patents aren't the problem (Score:5, Insightful)
***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:Patents aren't the problem (Score:3, Insightful)
Why was the parent comment marked down as troll when it is absolutely right? Copyright isn't the same as a patent. What he goes on to say is debatable, but it certainly isn't far from reality.
Re:Patents aren't the problem (Score:3, Insightful)
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.
Re:Patents aren't the problem (Score:4, Insightful)
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:Patents aren't the problem (Score:5, Insightful)
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.
Re:Patents aren't the problem (Score:5, Insightful)
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.
Woosh (Score:3, Insightful)
Something very big just flew over your head.
.
There is no inherent right for anyone to restrict others copying / doing with whatever they see and obtain. Patents are a trade-off, a contract in society, but no right.
The only reason we have patent laws, was because people thought it would promote science. Now we see it is only to promote big business to hinder fair competition, or for small companies to hurt the big players through litigation. Nothing useful is produced in a patent, as the knowledge in a patent is legally dangerous knowledge to everybody. Thus it is not being useful for society. Patent-laws should therefore be revised, so it is again in alignment with the original purpose.
Artificial monopoly means "artificial". You can disregard nature only so long. When we have devices that can copy objects. Will you still restrict copying, when it's about physical matter rather than just information?
Rather than seeing the property of information being cheaply clonable, we should be mature about it, and see how such a useful property about software and information technology can further society - both technologically and spiritually (they go hand in hand).
The world is larger than just your own company..
Re:Patents aren't the problem (Score:3, Insightful)
Yes it's a good thing that mathematics was routinely patented over the last thousand years, otherwise we'd never had made any progress, and mathematical discoveries would never have been shared with the public.
(And even if you say it's only 20 years, how would quantum mechanics have advanced last century, if every discovery by one physicist resulted in a 20 year delay before others could make use of it? Or imagine Newton and Leibniz getting bogged down in a patent court battle for the rest of their lives over who invented Calculus first...)
Re:Patents aren't the problem (Score:3, Insightful)
No patents mean anyone can copy the invention without paying the inventor, so I win that argument.
That doesn't mean he's not getting paid at all, though. If his invention is any good, he's already making money from it by the time his competitors find out about it.
That monopoly has been earned
No, it has been granted .
It's earned based on the fact the inventor has full rights to profit from the invention and others don't, at least not without permission.
Which is only the case because the government says it is.
It doesn't have to be a monopoly, though. If anyone pays licensing fees to the company owning the invention, it can use the invention.
That's exactly what the monopoly is.
Lol, the walling off is to protect the weak (inventors) from abuse (copycat jackals, greedy companies and consumers).
So how''s that been working out for you lately?
Re:Patents aren't the problem (Score:3, Insightful)
Many algorithms can be explained and profiled using mathematics, but they aren't a subset of mathematics. Take quicksort for example. Sorting data has nothing to do with mathematics. It just so happens that a mathematical model can predict the performance of the algorithm.
Mathematicians work on axioms and the like. There is no axioms for a lot of things in software. Saying software patents should be outlawed because it's based on logic is like saying that mechanical patents should be outlawed because it's all based on the atoms that produce the end product.
Re:Socialists (Score:3, Insightful)
I'm not denying there are many idiotic patents out there, but there are also many valuable, useful and innovative patents that deserve protection.
Software patents are a great idea, but the execution is so completely flawed that I'm convinced we'd be better off without them. The cure is worse than the ill.
Let's take a very normal hypothetical. You produce a piece of software with a genuinely innovative non-obvious algorithm in it, absolutely patentable by the rules, and you get a patent on it. IBM shamelessly steals the idea and puts it in their software. Can you sue? The thing is, you've undoubtedly violated at least one (and probably more) IBM patents in your software. Unless you have a licensing agreement with IBM, you're going to have trouble.
Part of the problem is that virtually every idea a software engineer can come up with is either patented or patentable. When the bar is that low, the system is worse than worthless.
Re:Patents aren't the problem (Score:4, Insightful)
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:Patents aren't the problem (Score:3, Insightful)
I thought one of the points of patent law was to create a library of knowledge. The idea is that if an inventor has to keep the invention secret or obscured in order to make money on it, the knowledge could be lost. Patents give temporary protection to the inventor (or their supreme corporate overlord).
If mathematics were patentable, then eventually the knowledge is available to all and the mathematician (or their supreme corporate overlord) gets rights for some certain period of time.
This doesn't seem to be that much of a problem, or does it?
If the point of patent law is to create a library of knowledge, then for software patents it is an epic fail. A proper library of knowledge might be gleaned from the ACM journals or from other publications that deal with software development theories, but the USPTO is not, nor has it ever been a depository of knowledge of computational sciences.
More specifically, a software developer can create in one day dozens of different algorithms and even have them implemented.
More to the point, the largest problem that the USPTO faces is dealing with prior art and the fact that such prior art is not contained within the repository of the library of previously filed software patents. It is unfortunate that a large number of the software patent that have been filed and even accepted by the USPTO have precedence in books like The Art of Computer Programming [amazon.com]
For myself, if something I patented could be found in that book series, I would be supremely embarrassed... yet I've found stuff that has been patented which is in those books... and the patent was filed well after the publication of that volume. Nothing against Kunth either, as he is acting here more as a historian and for me does a much better job of establishing a proper library of knowledge about this particular subject than can ever possibly be done by an organization like the USPTO.
Re:Socialists (Score:3, Insightful)
There are also many valuable, useful and innovative ideas that deserve compensation.
Patents are a terrible way to compensate inventors. "Protection" in this context is merely another word for "monopoly". I wish to compensate inventors in some other way that does not involve a monopoly grant, with all the problems that has caused. There's a big difference between not wanting to compensate inventors at all, and not wanting to compensate inventors with patent protections.
You say "socialist" as if that was a bad thing. You, on the other hand, would seem to be a monopolist, or at least an apologist for them.
Abolishing patents is not necessarily socialist, just as any other anti-trust measure is not. Using the public highway system does not make us socialist, though it certainly harmed the passenger railroad business. Nor does using the postal service make anyone socialist. The Founding Fathers felt that communication was too critically important to be trusted to the caprices of the market and ever present threat that someone might try to corner that market, or that a crash would drastically reduce or stop communication for a time. There was also a big debate over the US's banking system, that is, whether there should be a national bank.
Now we are debating health care. The market in its current form has certainly failed us. "Growing" the health care business can and has been done by looking the other way at unhealthy customs (soft drinks, fast food), suppressing knowledge (yes, Will Robinson, tobacco is dangerous), silently consenting to pollution, and favoring chronic care over cures (shame about high blood pressure, isn't it, having to take medication for the REST OF YOUR LIFE). And the way they bill things! They can't say how much anything will cost, up front, and there's no good reason for that. And "containing costs" has been done less by addressing all the above mentioned problems and more by blaming the victims, denying and canceling coverage, and attempting in every way to shift every possible cost to the supposedly insured. Medical debt is so screwy that it does not count for determining credit ratings!
Quit thinking that "market" is the answer to every question.
Re:Patents aren't the problem (Score:3, Insightful)
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.
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 more capable of defending these odd tangenital points than I am.
Discovery, novelty, etc. (Score:3, Insightful)
Re:Patents aren't the problem (Score:3, Insightful)
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 programmed any common calculator and turned it into a (laugh laugh) NEW MACHINE and it now has - and again I quote - it has "new abilities".
See, now it's a doubling machine. If you press 5 equals it will display 10. If you press 8 equals it will display 16. If you press 9 9 equals it will display 198.
If instead you press 0 plus plus 1 equals you new have a different "NEW MACHINE" with different "new abilities". Now it magically becomes an incrementing machine. If you press 5 equals, now it will display 6. If you press 8 equals, now it will display 9. If you press 9 9 equals, this time it will display 100.
If you program the calculator by pressing 2 divide divide 3 equals, now you get yet another "NEW MACHINE" with a different "new ability". Now if you press a number and press equal it will display one-third of that number.
And if you have a calculator that costs a few dollars more and has slightly more memory capabilities, you can press a few more keys and program that calculator into a "NEW MACHINE" with the "new ability" to carry out !PATENTED! calculations when you enter a series of numbers. Those math patents were invalidly granted(*footnote).
The notion that programming a computer produces a "new machine" is patently absurd. If that is true then pressing 2 multiply multiply 0 equals on a common calculator magically turns it into a "new machine, it's no different, it's merely a particularly short program. I'm sorry, but that's patently absurd that a common calculator becomes a "new machine" when you press a few key on it. It is patently wrong that a computer magically becomes a "new machine" when you press a few keys on it.
It's the same machine, and it only has a single "ability", the ability to calculate. A computer can carry out longer more complicated calculations than a common calculator, but that is the only thing it can do. All software is nothing more than a fancy way of writing a fancy math function. A pure math function, numbers go in, get calculated, and numbers come out. Software is nothing but a fancy math function.
You can certainly connect a computer to physical devices that do patentable stuff, but the computer itself, software, is incapable of doing anything other than rapidly calculate a long math function. It's nothing more than a common calculator with more memory and more speed. Calculators ALREADY have the ability to carry out any computation you type in. Computers ALREADY have the ability to carry out any computation to type in. A calculator does not become a "new machine" when you type in the calculation you want it to compute, and computers do not become a "new machine" when you type in the calculation you want it to compute.
*footnote:
The Supreme Court has stated that algorithms are not patentable, that they must be treated as "familiar prior art" for patent purposes, has stated that "insignificant post solution [physical] activity" cannot transform a non-patentable algorithm into a valid patent. The lower courts have clearly erred by violating those Supreme Court statements on patentablity. The latest Supreme Court software-related patent majority ruling (Diamond V. Diehr) concluded with the explicit statement that they were only ruling in favor "Because" they viewed it as an "industrial process" patent. The ruling stands for the rather simple position that the presence of a calculation (a.k.a. software) somewhere within an otherwise patentable physical process does not REMOVE the patentabili
Re:Patents aren't the problem (Score:3, Insightful)
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 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.
That's not a good enough reason. If something is valuable, and if its value does not diminish when widely distributed (the Mona Lisa is just as good a painting whether one person looks at it or a million people do), then we should distribute as widely as possible so that as many people as possible can enjoy that value, if they're interested in doing so.
Copyrights and patents are meant to serve the public interest, not private interests. We promote the progress of science and the useful arts by causing works to be created and published, and inventions to be invented, disclosed, and brought to market, which otherwise would not have been, and by placing those works and inventions in the public domain where they can be used and enjoyed by the greatest number of people for the least cost.
The mechanism we use for accomplishing this goal -- public domain works and inventions -- is to grant a temporary monopoly so that they are created, invented, etc. in the first place, if they would otherwise not have been. Granting monopolies to reward creators and inventors is not the goal of the system; indeed, as a mere means to an end, and one which causes harm to the public unless outweighed by the public benefit of having new works and inventions which are minimally protected and swiftly enter the public domain, we ought to never grant such rewards unless it benefits the public more to do so than if we did not.
Here's an example: Until about 20 years ago, architectural works were not copyrightable in the United States. Yet many buildings were created and erected. Granting copyrights on buildings has not increased the number of buildings created and built. There have been absolutely zero benefits to the public regarding architecture which are attributable to copyright, as opposed to improvements in materials engineering, computer aided design, the availability of money for building projects, etc. We could abolish architectural copyrights tomorrow and see no decline in the field as a result (of course external factors like the financial collapse will impact architecture, but it would do so anyway).
Architectural works should not be eligible for copyright because the public is not left better off with architectural copyrights than without them, and the public interest is the only issue to consider. Likewise, no type of work, whether computer programs, musical compositions, or books, should be eligible for copyright unless the public is better of suffering the embarrassment of a copyright than otherwise, and the specific scope and duration of the copyright, the remedies for infringement, etc. likewise leave the public better off than some other option.
Copyrights and patents need to be justified and looked at very carefully. It is the height of foolishness to just grant them willy-nilly, or to consider mere authors or inventors as more important than society at large.