Is the Tide Turning On Patents? 172
Glyn Moody writes "The FSF has funded a new video, 'Patent Absurdity: how software patents broke the system,' freely available (of course) in Ogg Theora format (what else?). It comes at a time when a lot is happening in the world of patents. Recent work from leading academics has called into question their basis: 'The work in this paper, and that of many others, suggests that this traditionally-struck "devil's bargain" may not be beneficial.' We recently discussed how a judge struck down Myriad Genetics's patents on two genes because they involved a law of Nature, and were thus 'improperly granted.' Meanwhile, the imminent Supreme Court ruling In re Bilski is widely expected to have negative knock-on effects for business method and software patents. Is the tide beginning to turn?"
Re:Yes and No. (Score:3, Interesting)
Re:I'm not as optimistic about Bilski (Score:3, Interesting)
Maybe not! Hard times have changed the public attitude in some strange and unpredictable ways. People feel betrayed by businesses in many ways and for many people revenge is about a wink away. I would think that our politicians may not wish to be seen as business friendly right now.
Re:Yes and No. (Score:1, Interesting)
If technology is at such a state that everyone's needs are covered, why do we need money?
Humanity seriously needs to consider an economy beyond simple money. Especially beyond the labor market. Technological progress is directly opposed to people being able to sell their labor.
Of course, this train has been a long time coming, but that doesn't mean it isn't going to plow us over...
Re:I'm not as optimistic about Bilski (Score:4, Interesting)
The main difference is that this isn't a constitutional case. The law says that there shouldn't be patents for software or business methods, and the courts have interpreted this in a very strange way. What we are asking the court to do is interpret the law as congress intended it to be interpreted, not over-rule it.
Re:When I applied for my patents... (Score:4, Interesting)
as it has been shown before, when it comes to software it's better to innovate than waste time on patents. [techdirt.com] Unfortunately a lot of people think it's a great idea to get something patented and don't even consider that hundreds of other people may have done the same thing before.
I work in an industry where I hear the phrase "I'm applying for a patent on my product" all day long. It doesn't mean shit, and you can get sued for claiming a patent on a product that doesn't get approved. You're applying for a patent for x? guess what, so are the other 25 people for doing the same thing. This goes double or triple for anything involving software in any form.
Re:No (Score:1, Interesting)
...except for public-key cryptography.
Read about Chinese remainder theorem [wikipedia.org], and you will see that even RSA was not some brilliant new idea. It was a software-implementation of something that had been known for over a hundred years. I'm personally still searching for an example of a software patent that actually represents a novel invention.
Re:When I applied for my patents... (Score:5, Interesting)
Yeah, tell me that patents don't matter when *you're* being told by potential investors that, gosh, you're a software company with an innovative product but you only have an app out for *one* patent? What are you thinking?
Regardless of that particular lawyer's minority position, potential investors and even state and federal grant boards look strongly to whether you're taking steps to protect your IP. We have product *and* are patent pending. The product was developed privately before the patent was applied for. Most software companies launch on sweat equity. Early on, cash is for hardware, lawyers, travel, things of that nature.
As for this "use the money to innovate instead" argument? Filing for a US patent costs about $10k, including attorney fees. An entry-level programmer costs you perhaps $65k after benefits -- we're talking entry level. So that's two months worth of salary + benefits. How much innovation do you think an entry level programmer is going to do in two months?
Furthermore, all of the costs aren't upfront. You may only spend $6k or so up front, but more when you need to actually defend your patent. So that gets pushed down the road, which in a startup, is a *very good thing*. So off the bat, it's one month of a starting programmer's salary you're talking about.
This is just the way business works. You either play the game or you get out of the pool. Many people here don't like patents because of their stifling effect on free software, and rightly so. But your anger needs to be directed at those who defend or seek to strengthen our current patent system rather than those who want it to be more reasonable but don't have a voice in the matter.
Here's an issue that most people here probably aren't aware of. The patent system is skewed toward helping the Big Boys. Startups aren't your problem. Startups have less money, yet they have to pay more for patents because they don't have a big team of lawyers lying around. Startups often aren't familiar with all of the risks and intricacies of the patent process and may screw themselves over by talking in detail about what they're doing too soon or things like that. Startups *definitely* can't afford to patent troll, to file a bunch of random patents and see what sticks. Startups may not be able to afford to extend their coverage to new markets or cover their tech as well. So the whole system is biased in favor of big companies.
What would I like to see in patent reform?
* Shorter terms for software patents. The term on a patent of a given type should be proportional to the typical length of the product cycle, such that the term is, let's say, however long it generally takes for the third generation of said product to hit the shelves. So if you say the typical software innovation cycle is 2-3 years, then perhaps 5 years. From time of granting, not of filing.
* Greater leniency for filing errors, but stricter standards for what's innovative
* Faster processing times
* A *higher* filing fee. This will make the percentage-difference in cost between patents from the big boys and startups smaller, as well as helping fund more people to review them faster and better.
And you know... a lot of the business world would probably consider me a radical for this, but I'd like to see there be funding -- perhaps from the patent fees themselves -- for a governmental legal defense organization for nonprofits and individuals. That wouldn't mean that nonprofits and individuals would get a "violate patents risk-free" card. But it'd help stop meritless bullying from companies who know that their targets are too weak to fight back.
Re:ideas aren't patentable (Score:3, Interesting)
The abstract process to produce alcohol from fermented grain is in fact patentable. The specific implementation is protected by copyright. Chemical engineering is full of both patents and copyrights. There is nothing special about algorithm patents in this regard. You are not copyrighting the algorithm, just a specific reduction to practice. All types of patents are like this, abstract designs being patentable and reductions to practice having copyright protections.
Chemical process patents are pretty much identical to algorithm patents except it is molecules instead of bits. If you develop a unique process (the algorithm) then that is patentable in the abstract and always has been. Industrial chemistry is full of (often formerly) patented processes designs. The implementation of a particular process design is copyrighted. Both pieces, the design of the process and the design of the implementation, are independently valuable and protected.
Re:No (Score:3, Interesting)
Not exactly. They are the exact antithesis of a free market. They are a form of market regulation. But they are an example of capitalism, since capitalism is the system of owning things, and exchanges based on that ownership. Increasing the scope of things one may own, therefore, increases the scope of capitalism.
It's unfortunate that it's so common to conflate "free market" and "capitalism." The two are related in a paradoxical way. A free market isn't regulated, but no such market can exist, since you can't own things without some kind of legal structure that says that you own the thing. Without that structure, at best you can possess a thing; you can't own it. And of course in that scenario patent and copyright can't exist--you can only have in your possession things that are excludable and rivalrous, but you can own anything the law says you own.
So in a free market, there are actually very few things you can exchange, and therefore very little capital.
Re:No (Score:2, Interesting)
Re:I'm not as optimistic about Bilski (Score:3, Interesting)
Nobody as far as I am aware is arguing that Congress were acting outside their powers in allowing patents to be granted. As far as I'm aware, Congress could pass a law allowing the software patents if they wanted to.
They are arguing about whether or not a computer program that calculates the price of energy derivatives and buys or sells them in response to energy trades is patentable under the existing rules made by Congress.
This invention appears to me to be part mathematical algorithm - calculating the price of the derivatives, and part business method - business operating procedure about how to run their business.
If you employed someone to do this manually, it wouldn't be patentable, and the position in Europe is that it would mean it isn't patentable to do it on a computer either. We call this the "little man" defence. I think we are hoping for a similar ruling from the US Supreme Court.