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Venture Capitalists Lobby Against Software Patents 127

Posted by Soulskill
from the lobby-vs-lobby dept.
ciaran_o_riordan writes "No matter which side the US Supreme Court's Bilski decision pleases, it will be just the beginning of the software patent debate in the USA — the other side will start a legislative battle. The lobbying has already begun, with venture capitalist Brad Feld arguing against software patents, mailing a copy of Patent Absurdity to 200 patent policy setters. As Feld puts it, 'Specifically, I'm hoping the film will bring you to an understanding of why patents on software are a massive tax on and retardant of innovation in the US.' The patent lawyers and big patent holders often tell us that patents are needed to secure investment, so it's interesting to see now that venture capitalists are refuting that. And Brad Feld isn't the only vocal one; there's a growing list."
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Venture Capitalists Lobby Against Software Patents

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  • Absurdly obvious (Score:5, Insightful)

    by burnin1965 (535071) on Monday June 07, 2010 @02:58PM (#32488308) Homepage

    The patent lawyers and big patent holders often tell us that patents are needed to secure investment, so it's interesting to see now that venture capitalists are refuting that.

    Seems logical that a venture capitalist would see the absurdity in software patents. After all, how many venture capitalists are investing in all the fresh innovations and inventions coming out of Microsoft, Apple, Amazon, etc.

    • by Jeng (926980) on Monday June 07, 2010 @03:06PM (#32488410)

      Lots and lots of them actually.

      Just the venture firms invest in what those companies would purchase instead of investing directly into the big names.

      Now if those little firms did not hold patents would the large companies just copy the little guy?

      • by bersl2 (689221) on Monday June 07, 2010 @03:15PM (#32488532) Journal

        The start-up is first to market (by definition), and a huge multinational corporation does not turn on a dime. Nor will they chase after every new idea, nor will they always identify which ideas are the most important ones in the market for the future.

        • Re:Absurdly obvious (Score:5, Informative)

          by Alien Being (18488) on Monday June 07, 2010 @08:44PM (#32491424)

          "The start-up is first to market (by definition)"

          That's just wrong. A start-up is simply a new company.

          • Re: (Score:3, Informative)

            by Teancum (67324)

            A start-up is the first to market because they are in the position to take the most risks. It is sort of implied by being new, as there is little to lose and much to gain by trying new things out. That sort of is in the definition of a "start-up".

            The purpose of most for-profit companies is to "maximize profits and increase shareholder equity". By trying to be first to market, that is counter-productive to meeting this corporate charter for established companies as there are also a whole bunch of wrong gu

            • Agreed. The problem is with the term "first to market." Its meaning relies on perspective. What is the market? Retail space on Best Buy shelves? Direct marketing via late night television ads and browser pop-ups?

              I remember a story about a guy who thought of dunking banana slices in chocolate and mixing them with banana flavoured ice cream. He showed this to some food company, which turned him down and then marketed it themselves. Many other examples abound. Maybe Robert Kearn's story (he patented his inte

        • Re: (Score:1, Informative)

          by Anonymous Coward

          The fact that you see these big software companies like Microsoft and Apple patenting everything under the sun regardless of vagueness, simplicity, obviousness, and outright prior art shows that while they may not follow every new idea under the sun, they're willing to patent it and try to lock up that idea so nobody ELSE follows those ideas before the large corporation that can't stop on a dime is finally able to make a big ass u-turn.

      • by burnin1965 (535071) on Monday June 07, 2010 @03:21PM (#32488606) Homepage

        Lots and lots of them actually.

        Just the venture firms invest in what those companies would purchase instead of investing directly into the big names.

        Pardon me if I am misunderstanding your logic but it appears that you care suggesting investment in start ups is equivalent to investment in the big corps because the hope is the big corporation will buy the start up. While it is true that VC investment in start ups hope to profit by eventually selling to a larger corporation it is far from an equivalent to investing in the big corporations R&D.

        Software patents are used to prevent unforeseen competition from fresh start ups and they cut the VCs out of the loop because they don't invest in the big corporations, otherwise they would not be VCs they would just be investors.

        For a VC it makes sense to stop the software patent nonsense because it is destroying not just start ups and new ideas but it also destroys investment opportunities in those start ups and new ideas.

        • VCs need to make ROI with a fat R. IPOs are almost non-existent today because of the tighness of the markets.

          IP makes a company ostensibly more valuable, but only if the IP makes money in and of itself, either as a production protection, or as a defense, or as part of a portfolio to go to war with.

          Patents don't protect small companies or large ones. They're chess pieces on a board. If you remove them, then the general method of business in software and systems development would change dramatically, first wi

          • VCs need to make ROI with a fat R. IPOs are almost non-existent today because of the tighness of the markets.

            You are correct that the market is tight, and that affects IPOs. I certainly agree that software patents produce more uncertainty and result in less innovation than would occur if copyright were the only protection for unique technologies driven by software. However, the biggest cause of the massive drop in IPOs is directly attributable to Sarbanes-Oxley (SOX) compliance. As soon as a company decides they are ready to go public, they run into this multi-million dollar wall of SOX compliance. In addition

            • Re: (Score:3, Informative)

              by burnin1965 (535071)

              This is easily seen as an even greater impediment to companies going public than the economic downturn. Just like the government intervention that allows companies to patent software, government interference in the market in the well-intentioned ideas behind SOX becomes simply another way that existing corporations can bludgeon upstart competition with their incumbent dominance and lobbying savvy.

              Considering the massive financial impact investors endured from the likes of Enron, Worldcom, Tyco and others i

              • Re: (Score:3, Interesting)

                by Curunir_wolf (588405)

                Market pull backs and recessions that result in regulations like SOX are the cause of reduced IPOs not the regulation as can be seen in the charts in this article [seekingalpha.com] that clearly shows little or no impact to IPO trends from the passing of SOX in 2002. Once the market started to recover from the dot com bust the IPOs returned even though SOX was in place.

                What this chart ignores is what has happened to the IPO market overall. That is, companies are choosing to list in overseas markets instead of the US [bloomberg.com], where they don't have SOX to contend with. Imagine how many more IPOs you would be seeing on NYSE and NASDAQ without this regulation driving them to overseas markets.

                • companies are choosing to list in overseas markets instead of the US, where they don't have SOX to contend with

                  The chart is not ignoring anything. Without SOX would more companies do their IPO in U.S. exchanges, perhaps, would it be worth it to drop SOX and get these IPOs, lets put it into perspective...

                  From the Bloomberg article: "It would cost us as much as $3.5 million a year to comply with the vigorous reporting requirements in the U.S. For a $100 million company, that's 3 to 4 percent of gross revenue.

                  • Re: (Score:3, Interesting)

                    by Curunir_wolf (588405)

                    Considering the market value alone that Enron wiped out it will take 680 years of Peach Holdings revenue to replace the destruction of the Enron accounting shenanigans. I say screw Peach Holdings, let them do their IPO over seas and we'll keep our regulations here in the States to prevent another Enron.

                    You're assuming that there is something about SOX that would actually prevent those kinds of things. Recent failures and shady dealings of AIG, Bears-Sterns, Bernie Madoff & co., Freddie and Fannie, etc., etc. seem to provide evidence that all those extra costs do nothing to improve market stability or accountability, but only help the big companies get bigger as smaller companies are kept out of the game.

          • "Patents don't protect small companies or large ones. They're chess pieces on a board."

            OK, then. What's the problem with a gambit? It usually simplifies the battlefield in ways both contenders find adequate.

            • Re: (Score:3, Informative)

              by Teancum (67324)

              What's the problem with a gambit? It usually simplifies the battlefield in ways both contenders find adequate.

              It keeps the legal profession employed and not much more. While most larger companies are able to afford full-time attorneys and perhaps even specialists such as patent and other "intellectual property" lawyers on staff, that is something which is much more difficult to do for smaller companies or even private individuals to do even on an occasional basis.

              For the private innovator who is tinkering in their garage and trying to come up with something new, I argue that patents do absolutely nothing to protec

          • by Thing 1 (178996)

            VCs need to make ROI with a fat R. IPOs are almost non-existent today because of the tighness of the markets.

            IP makes a company ostensibly more valuable, but only if the IP makes money in and of itself, either as a production protection, or as a defense, or as part of a portfolio to go to war with.

            Let's form a company to sell IPOs!

            We'll create a whole bunch of Intellectual Property, and then sell Options on it!

            Yea, the joke pretty much ends there. Sorry; try the veal; tip your waitresses, just not over.

      • Re:Absurdly obvious (Score:5, Interesting)

        by Darkness404 (1287218) on Monday June 07, 2010 @03:26PM (#32488666)

        Now if those little firms did not hold patents would the large companies just copy the little guy?

        No, because the vast majority of patent cases are where there is little to no "innovation" or when the innovation is so generalized no one really knows what exactly they were trying to patent.

        Apple, Microsoft, Google, Amazon, etc. don't go searching for patents to violate, they usually create innovations independently then pay protection money to the trolls and the small firms who sell unknown products.

        • Re:Absurdly obvious (Score:5, Informative)

          by burnin1965 (535071) on Monday June 07, 2010 @03:38PM (#32488836) Homepage

          they usually create innovations independently then pay protection money to the trolls

          Actually it works both ways.

          While their primary function is not as a patent troll Apple [techcrunch.com], Microsoft [zdnet.com] and Amazon [dmwmedia.com] have in turn played the role of the frivilous patent litigant with the biggest difference being in their objective of halting the "Progress of Science and useful Arts" to the betterment of their bottom line.

      • Now if those little firms did not hold patents would the large companies just copy the little guy?

        They might. But they are usually not very good at copying them, and even if they are it's almost always cheaper to buy out the little guy (unless his idea is trivial, in which case it shouldn't be patentable in the first place).

        Not to mention that, as pointed out by others, big companies generally don't have to worry about little guy patents. Those little guys either violate one of their patents (pretty likely unless they are a patent troll) or need the big companies in one way or another (i.e. as distribut

    • Re: (Score:2, Informative)

      by Anonymous Coward
      Conversely, this is a symptom of why things will not change. The big guys benefit and can use it to stymie the little people. There is too much uncertainty when things change....
    • by JamesP (688957)

      VCs should buy the patent trolls and sue the big patent holders aggressively...

      TAH DAH

      1 - More money for small companies
      2 - Patent lobbyists will get their own medicine
      3 - Profit

    • Bad assumption (Score:5, Insightful)

      by Benfea (1365845) on Monday June 07, 2010 @04:05PM (#32489216)

      Patents don't mean diddlysquat anyway if you're a small start up going up against the big dogs. They will simply steal your idea anyway, then if you try to sue them, they will keep the case tied up in court long enough for the legal costs to drive you out of business. The only patents that are worth squat if you're an individual or a small business is a chemical patent, because a chemical either is or isn't a particular chemical, and no amount of fancy lawyerspeak will ever manage to obfuscate that fact.

      The problem with software patents is that large corporations can patent things that are obvious or that everyone is already doing anyway, then use complex legal cases to drive their competitors out of business.

      • Re:Bad assumption (Score:4, Interesting)

        by Jah-Wren Ryel (80510) on Monday June 07, 2010 @05:59PM (#32490336)

        They will simply steal your idea anyway, then if you try to sue them, they will keep the case tied up in court long enough for the legal costs to drive you out of business.

        I know a guy (well, my niece is dating him, although I wish she wouldn't) who is a real asshole. He's made millions of dollars by taking some poor schmuck's copyrighted and/or trademarked designs & artwork and putting them on the clothes he sells. He knows what he's doing, he even brags about it. The way he's made so much money at it is that by the time the owner of a design is able to sue him and the court system finally rolls around to awarding the poor schmuck the damages, this asshole has raked in way more money than he has to pay out in damages. He'll then just turn around with a new shell company and do the same thing to some other schmuck.

        The guy is in his 40s but he has a set of ethics, and general social behavior level, of a frat-boy. I see him as a paragon of modern corporate management in America today.

        So, I can personally attest that what you describe happens with copyrights and trademarks, it should be no surprise it happens with patents too. Since I believe we will never rid the world of assholes like that guy, I think the only solution is to stop promoting systems that enable them in the first place.

        • Re: (Score:1, Informative)

          by Anonymous Coward

          Or start outing the assholes that drive companies that do this. Why help hide his behavior? What company is it so we can research and boycott/class action this kind of behavior into extinction?

          • Or start outing the assholes that drive companies that do this. Why help hide his behavior? What company is it so we can research and boycott/class action this kind of behavior into extinction?

            I dunno, never bothered to find out.
            He'll just shut it down and open a new one in a year or two anyway.

        • Re: (Score:1, Funny)

          by Anonymous Coward

          Punch him.

          He deserves it.

        • by zaffir (546764)

          Christian Audigier? Or however that's spelled?

    • Re: (Score:2, Interesting)

      by gnupun (752725)

      Seems logical that a venture capitalist would see the absurdity in software patents.

      Is it? Patents protect profits. If a VC invests in a company that has patented their tech and the product is a hit, the patents would definitely prevent predatory competitors (like MS) from eating a big, fat slice of the profits. So it is illogical for a VC to not support patents unless he is investing in a product that is not very innovative.

      To make a car analogy of the ridiculous suggestions of these VCs: "car acciden

    • Seems logical that a venture capitalist would see the absurdity in software patents. After all, how many venture capitalists are investing in all the fresh innovations and inventions coming out of Microsoft, Apple, Amazon, etc.

      Seems logical, I agree. However, most venture capitalists that I know would not agree - or actually would only "partially" agree. My experience is: In a VC funded startup, the VCs are pressing to file as many patents as possible. They see - and probably quite correctly so - patents as some tangible currency, when the startup will be sold or floated. It has nothing (or nearly nothing) to do with securing the innovations of the start-up, but much to do with making innovations explicit to the outside - so

  • by Anonymous Coward

    For some reason, America just doesn't understand how to do proper regulation. Every attempt at regulation ends up causing more problems than it manages to fix, or the lack of regulation ends up allowing horrid behavior to occur. But the problem isn't with regulation itself; many other Western nations manage to employ regulation very sensibly, and it ends up benefitting their societies as a whole.

    Look at Prohibition. Look at the deregulation of the financial system. Look at the "War on Drugs". Look at the "W

    • by burnin1965 (535071) on Monday June 07, 2010 @03:12PM (#32488480) Homepage

      America just doesn't understand how to do proper regulation. Every attempt at regulation ends up causing more problems than it manages to fix, or the lack of regulation ends up allowing horrid behavior to occur.

      Every now and again the United States does get it right.

      Before the United States government forced aircraft manufacturers and patent holders into the Manufacturers Aircraft Association [wikipedia.org] there was a patent war that resulted in lots of litigation in the United States but no aircraft manufacturing or innovation once the patent war started.

      When a real war broke out, WW1, the United States had to buy aircraft from France because the United States business ventures were more interested in lawsuits than making aircraft.

      After ending the patent war by forcing everyone into a patent pool the aircraft industry in the United States took off.

      There are other similar cases that plainly show how the patent system has been a failure from the beginning in serving the Constitutional requirements. To promote the Progress of Science and useful Arts. [wikipedia.org]

      • by Znork (31774)

        We could solve todays patent problems in more or less the same way; stick all the patents in a pool, assign what you think is an appropriate incentive for the economy as a whole to pay for it all, and let the parties in the system divide the available capital fairly.

        Patents and other IPR laws seem so enticing when their costs are hidden; one never points out that when they get their hundred billion incomes those hundreds of billions are taken from elsewhere. More reasonably, both their gathering and distrib

        • Re: (Score:3, Informative)

          by Teancum (67324)

          The problem with a patent pool (see the MPEGLA for details on a current one) is the buy-in and cost to participate. These by their nature tend to be very monopolistic in nature and are also often rigged to drive out competition and certainly to set the barriers of entry for new start-ups from getting involved.

          It is a real trick, too, in terms of trying to "divide the capital fairly". Organizations like ASCAP have been collecting money for years on behalf of individual song writers but almost without excep

      • by zQuo (1050152) on Monday June 07, 2010 @04:52PM (#32489738)
        This is so true! According to "Innovation for Dummies" book, a patent only grants the right to forbid others to make a product. Patents do not give you any right to make anything. This is a very important distinction. A patent is the ability to deny others, not the ability to make something.

        If you build a better airplane, you can patent all the innovative features (and not so innovative ones) as much as you like... and then you probably still can't make the plane... because there will be other patents or IP that your innovative airplane incorporates. If you can't get all the patent holders to agree to let you make the airplane, then you cannot make a product. The only way to make money off of your patent is to further deny others the ability to use the idea until they pay.

        The notion of counting the patents issued in a country to measure "innovation" is terrible. It really means the opposite; that progress is actually slower in that country the more patents are issued. It doesn't mean that the whole idea of patents are bad, but each patent already issued slows future product development for the country as a whole . Given the societal costs of an issued patent, we really should put the bar higher, and grant patents only for really great innovations. Each current issued patent is like a grit of sand gumming up new product development... so each patent issued, if any, had better be worth quite a bit.
        • by chthon (580889)

          I think that in every dispute about patents, a reference to 'The Iron Standard' from Henry Kuttner should be included.

    • by Benfea (1365845) on Monday June 07, 2010 @04:08PM (#32489246)

      ...is that the regulation is generally written by the very industries whose behavior the legislation is supposed to curtail. This is a consequence of our corrupt campaign financing system in which large corporations have more say than voters in what our government does. If you don't believe me, just look at how the supposedly-socialist Obama administration is using government resources to prevent reporters from taking photographs of wildlife injured by the oil spill. This serves no purpose other than to help BP manage their PR crisis, and certainly isn't in the best interest of the public.

      • Re: (Score:3, Informative)

        by burnin1965 (535071)

        large corporations have more say than voters in what our government does

        And to add some previous insult to injury we have the recent "Health Care Reform" bill that addresses the out of control cost of health care insurance premiums by forcing every United States citizen into paying those same premiums to the same corporations or end up paying a fine on their annual taxes.

        And then there is the 2003 Medicare Modernization act with the "competition" clause that prevents the Medicare plan coordinator from getti

    • by Xtifr (1323) on Monday June 07, 2010 @04:29PM (#32489468) Homepage

      For some reason, America just doesn't understand how to do proper regulation. Every attempt at regulation ends up causing more problems than it manages to fix, or the lack of regulation ends up allowing horrid behavior to occur.

      "Every attempt"? Nice rhetorical device, but I think you seriously underestimate how many regulations there are, and how many of them work reasonably well--not to mention how many things are unregulated without problem. The thing is that when regulation works well, it's almost unnoticeable, but when it fails, the results are often spectacularly obvious (as with your examples). This is the "man bites dog" effect: dogs frequently bite men, so that's not news, but the other way around is definitely news, so if you go just by the news, you'd conclude that men are more likely to bite dogs than the other way around.

      For that matter, while I would tend to agree with you about other western nations, there are some notable exceptions. An obvious example is US vs. UK laws about libel and slander; in the US, truth is considered a defense, a proposition I find it hard to imagine that anyone could reject. Likewise, while copyright law is a general mess on both sides of the pond, I think "fair use" is a good example of something that the US got more right than most.

      • Re: (Score:1, Troll)

        OFFTOPIC lark.

        You brought up slander/libel laws in the UK vs the US. The UK doesn't reject the idea that truth is an absolute defense, instead they embrace the idea that even if you have a public medium, it's still not acceptable to go out and use it against people/companies. If you have a factually based and valid point to make you can generally get away with it. If you are out to sully someone, regardless of the facts, you won't. It's called CIVILIZED, and the US never did figure out what that was al
  • by jgagnon (1663075) on Monday June 07, 2010 @03:02PM (#32488360)

    As time goes on. Ultimately, I'm hoping that software patents go away completely, since there is no clean way to define anything code a computer executes in a tangible way like actual physical products. If they survive in some form we will, eventually, end up with a completely unenforceable mess of lawyer bait (yes, worse than it is already).

    • by Alwin Henseler (640539) on Monday June 07, 2010 @03:37PM (#32488818) Homepage

      My hope is that software patents will be made irrelevant one way or the other... by those countries that don't implement them.

      In effect, it's trying to force a (IMHO: ridiculous) concept onto the rest of the world. Some countries may go along with that, and patent holders (& lawyers!) will profit. But other countries may not, and will be able to do things that would require lots of red tape elsewhere. And thus: be more competitive by ignoring software patents.

      Any type of 'intellectual property' is only a profitable starter if you can get others to go along. But the more you push things into the realm of ridiculous, the fewer people/countries actually will. And when that happens, you have the red tape slowing you down, they don't.

      Copyrights may have a place, patents may have their place (I'm not so sure about either), but patents on pure software constructs are totally uncalled for. The sooner they're abandoned, the better.

      • Re: (Score:3, Interesting)

        by bersl2 (689221)

        And what if the US keeps software patents and then forces it on the world or a significant part thereof a la TRIPS?

    • Unfortunately the dividing line between software and 'actual physical products' is becoming increasingly vague. Pretty much any nontrivial machine now has a microprocessor (or several). Currently, in (most of) the EU we have the ludicrous situation that you can write an implementation of an algorithm in C and not infringe any patents, then implement the same algorithm in VHDL and infringe a parent. Given that there are now compilers that can take C code and generate ASICs that implement the algorithm, yo

  • Obligatory link (Score:5, Informative)

    by Lonewolf666 (259450) on Monday June 07, 2010 @03:03PM (#32488374)

    "Against intellectual monopoly" by Boldrin and Levine:
    http://levine.sscnet.ucla.edu/general/intellectual/againstnew.htm [ucla.edu]

    This book nicely sums up the arguments against patents :-)

  • by Voline (207517)
    when you mean "contradict". To refute something means to disprove it. That's an important distinction.
    • by Just Some Guy (3352) <kirk+slashdot@strauser.com> on Monday June 07, 2010 @03:29PM (#32488716) Homepage Journal

      To refute something means to disprove it.

      From TFS:

      The patent lawyers and big patent holders often tell us that patents are needed to secure investment, so it's interesting to see now that venture capitalists are refuting that.

      A venture capitalist said that patents are not needed to secure investment. That pretty damn well refutes the idea that venture capitalists won't invest without patents.

    • when you mean "present evidence against" an argument. To disprove something means that you demonstrate that it contradicts axioms or established truths.

    • Re: (Score:3, Interesting)

      by e2d2 (115622)

      Refute can also means to argue against the truth or correctness of something, not always proving it's erroneous. In other words, like most English words it has multiple meanings. I do see your point though. It's a strong word.

    • Have you ever heard of proofs by contradiction? Or more importantly counter examples?

      For something better rephrased (for the sake of logical analysis) as "All venture capitalists would not invest if it wasn't for software patents" you only need a venture capitalist saying the opposite, in fact you have a whole bunch of them saying that.

      You can say it isn't significant because "Most VCs would not invest..." but thats not the issue there, and I suspect that a well made statistical analysis would indicate a

  • I concur. (Score:1, Redundant)

    I'm hoping the film will bring you to an understanding of why patents on software are a massive tax on and retardant of innovation in the US.

    Me too!

  • oh my.... (Score:4, Informative)

    by gandhi_2 (1108023) on Monday June 07, 2010 @03:24PM (#32488646) Homepage

    I am no fan of Michael Moore (well, i liked TV Nation)...but these dudes could learn a lot from his style of instigation-based film-making.

    I watched the video all the way to the end....it only resonates with me cause i already agree with it. It's a film for the echo chamber. But it will fail to convince anyone in the middle...

    • Re: (Score:1, Insightful)

      am no fan of Michael Moore (well, i liked TV Nation)...but these dudes could learn a lot from his style of instigation-based film-making.

      So, your saying they should make things up and edit the video to make it look like the other side says things they've never said?

    • Re: (Score:3, Insightful)

      by TheRaven64 (641858)

      these dudes could learn a lot from his style of instigation-based film-making

      Seriously? I always assumed Michael Moore was a right-wing fifth columnist. He manages to present things in such a way that if he said 'the sky is blue' I'd want to contradict him.

      • Re: (Score:2, Informative)

        by DeadDecoy (877617)
        From my impression, Michael Moore is a satirical journalist with leftish leanings (really left if you're in the US). One of his first films in Flint Michigan, illustrated the economic devastation that occurred when a car manufacturer outsourced to Mexico; i.e. an entire city crumbled due to greedy capitalism. Bowling for columbine emphasized poor parentage and our irresponsibility to manage firearms, even though we are highly vocal about gun rights. Fahrenheit 9/11 was a big bash fest on the Bush administra
    • I watched the video all the way to the end....it only resonates with me cause i already agree with it. It's a film for the echo chamber. But it will fail to convince anyone in the middle...

      To be fair, this also seems to be an accurate description of Michael Moore movies.

      • by gandhi_2 (1108023)

        Ok, this is fair. But I'm sure you'd agree, Mr. Moore's style is much more compelling, at least compared to Patent Absurdity.

  • by FlorianMueller (801981) on Monday June 07, 2010 @03:35PM (#32488792) Homepage

    In 2005, venture capital investors who had backed (among others) eBay and Skype - and meanwhile also Twitter - supported my last-minute lobbying effort in the European Parliament against the EU software patent directive. The related press release mentioning Benchmark Capital (eBay, and more recently Twitter) and Danny Rimer of Index Ventures (Skype) is still online on the MySQL website [mysql.com] although Oracle and Sun certainly do favor software patents. Guess they forgot to delete it. Other references to MySQL's position on software patents disappeared after Sun bought the company in 2008.

    Those venture investors had previously supported an open letter to EU decision-makers warning against the possible consequences of an adoption of the proposed bill (which ultmately got thrown out, fortunately).

    However, I also got turned down by many venture investors whom I asked to support such initiatives against software patents. I don't think the resistance movement is strong enough in economic and political terms to achieve the abolition of software patents anytime soon. I regret to say so but the hurdle is high and politicians won't be convinced if it's basically just the Free and Open Source Software movement [blogspot.com] that takes political action against software patents. A few venture capitalists won't tilt the scales either. There would have to be broadbased support. In Europe, the leading venture capital organization (EVCA) actually lobbied for the legislative proposal we fought against. I guess the major American venture capital associations would take similar positions.

    In the near to mid term, I believe the Defensive Patent License (DPL) [slashdot.org] could have a very positive effect.

  • Tax it (Score:5, Interesting)

    by wheeda (520016) on Monday June 07, 2010 @03:48PM (#32488960)
    Let patent owners state a value for their IP. Let them be taxed at a certain percent, say 1% per year. Allow anyone to buy the IP into the public domain for the stated price. Ideally this idea would be applied to both patents and copyright. I claim this idea as my own. I had it while taking a shower about eight years ago. Please make use of it.
    • Re:Tax it (Score:4, Interesting)

      by melikamp (631205) on Monday June 07, 2010 @04:24PM (#32489412) Homepage Journal

      Aside from narrowly conceived examples where the state is low-tech and a given patent law improves the inflow of inventors and craftsmen from abroad, the public does not benefit from any kind of patent. The monopolies on the best ideas are just a tax on everyone besides the patent holders, and they do absolutely nothing good in the Internet society, where the rate of innovation is capped only by our ability to find and comprehend thousands of great new ideas arising naturally every day. This is true for software most of all, as most professional programmers know. But it is also true for other products, even as expensive-to-develop as pharmaceuticals. One glance at the costs of marketing drugs in US should be enough to convince everyone that the research would be a lot cheaper if we simply paid for it in advance, from taxes; as a bonus, the competition in manufacturing will fierce and the life-saving drugs will be available to everyone in the freaking world at the same low price. Holding on to the patents is very expensive and in most cases immoral.

      • by AK Marc (707885)
        Aside from narrowly conceived examples where the state is low-tech and a given patent law improves the inflow of inventors and craftsmen from abroad, the public does not benefit from any kind of patent.

        Patents were only supposed to be given for novel and new ideas. That is, something that other people, if given the problem, wouldn't have come up with. If they were applied as intended, I would greatly disagree with you. Let's say you sold cars. And you invented the Wankel engine. And this new engine,
        • Re: (Score:3, Informative)

          by melikamp (631205)

          If you can't patent it, you are much more likely to hold on to the idea and never tell anyone about it.

          The history, both recent and not so much, shows that just the opposite is true. As soon as one patents something truly novel and irreplaceable, one freezes the idea and sits on it for 40 years, all the while not letting anyone else to improve on it. Why would a patent holder do anything else? With a monopoly on something like a steam engine or a life-saving drug, one is set for life without a need to innovate any more, and one MUST prevent other people innovating as well, on pain of having to compete with a

      • by wheeda (520016)
        I generally agree that getting rid of most patents, and redoing copyright law would be a good idea. Good luck with that. Getting government to raise taxes should be pretty easy though.
    • Let patent owners state a value for their IP. Let them be taxed at a certain percent, say 1% per year. [...] I claim this idea as my own. I had it while taking a shower about eight years ago. Please make use of it.

      Oh, we will; we will. What value does this have? Sounds like it has a lot. If you pay back taxes on this unreported property you've had for eight years, within 90 days, there will be no interest.

      - The IRS

      • The GP is giving away the idea for free, so the "stated value" would be zero and there would be no tax. That's the whole point: the harder you make it for the public to purchase the IP into the public domain, the more you pay each year in IP taxes.

    • by fishexe (168879)

      I claim this idea as my own. I had it while taking a shower about eight years ago. Please make use of it.

      Yeah, right. And let you retro-patent your method and sue our asses off? No thanks.

  • So, after they succeed in getting all software patents nullified, I hope they'll willingly give up copyright on the software they're creating using all that free IP. Otherwise their argument boils down to "I don't want anyone to steal my intellectual property, I'm just not smart enough to come up with anything truly innovative."

    • So, after they succeed in getting all software patents nullified, I hope they'll willingly give up copyright on the software they're creating using all that free IP.

      A copyright is a significantly and fundamentally different thing than a patent. Patents can conceivably cover any implementation of an invention. Copyrights apply only to the particular fixed expression of an invention or creative work. There's no inconsistency to simultaneously holding objections to wholesale appropriation and accepting multipl

      • by blair1q (305137)

        Well, sort of but not really.

        When you patent something you have the right to license it to be sold by someone else. How it gets implemented is not relevant.

        Ditto for copyright. It gives you the right to license it to be sold by someone else. How they implement it is not relevant.

        You could argue that ideas are different from linguistic expressions, but no, they aren't. Linguistic exprssions are just a form we cast ideas into.

        The law doesn't work this way because lawyers are pettifiggery experts, so they h

  • by Theaetetus (590071) <theaetetus...slashdot@@@gmail...com> on Monday June 07, 2010 @04:10PM (#32489258) Homepage Journal
    From the description of the film...

    Patent Absurdity explores the case of software patents and the history of judicial activism that led to their rise, and the harm being done to software developers and the wider economy

    Call it a fallacy, but using that term automatically destroys a significant amount of your credibility. Particularly when you use it incorrectly. It does not mean, "any judicial decision which I dislike." Judicial activism is when a judge writes new law... For example, if a judge were to look at 35 USC 101, which says that patentable subject material includes "any new and useful process, machine, manufacture, or composition of matter" and pretend that software is not a process, or that "process" doesn't include software, that would be judicial activism.

    In fact, technically, the rule that everyone who's against software patents points to for why software should not be patentable - no patenting abstract algorithms - was a judicial decision writing a new limitation into the law, and was therefore "judicial activism". But we don't call it that, because we like that decision.

    • Re: (Score:3, Interesting)

      by burnin1965 (535071)

      if a judge were to look at 35 USC 101, which says that patentable subject material includes "any new and useful process, machine, manufacture, or composition of matter" and pretend that software is not a process, or that "process" doesn't include software, that would be judicial activism.

      I think I understand and in part agree with your logic, however, your conclusion is wrong for two reasons. First there had to be a starting point where software was considered by the courts for patent-ability. Since there w

      • if a judge were to look at 35 USC 101, which says that patentable subject material includes "any new and useful process, machine, manufacture, or composition of matter" and pretend that software is not a process, or that "process" doesn't include software, that would be judicial activism.

        I think I understand and in part agree with your logic, however, your conclusion is wrong for two reasons. First there had to be a starting point where software was considered by the courts for patent-ability. Since there was no precedence the conclusions by the court were not activism as the courts were not trying to bring about change. And second, in reading some of the early cases that concerned software patents [bitlaw.com] and the conclusions it becomes readily obvious that the decisions were in fact based on previous case law and 35 USC 100 through 35 USC 104 [uspto.gov]. It was in no way judicial activism.

        Yes, that's my point... It would be judicial activism to start carving out non-patentable subject matter from the list of process/manufacture/machine/matter, since the statute says nothing about "oh, and algorithms aren't patentable." Therefore, when SCOTUS said that, they were being activist. But we don't call it that, because it was the right decision.

        In the case Diamond_v_Diehr where the tide turned and lawyers started to find ways of patenting software it may very well be judicial activism and there was a very strong and well reasoned dissenting opinion [bitlaw.com].

        Not strong enough, or it would have been a majority opinion.

        I cannot say without a doubt that it is judicial activism as that type of conclusion would require more research to understand how the the justice's came to their conclusions that seemed to change several years and cases of precedence. I will only say it is a possibility and that I believe the dissenting opinion was correct in pointing out the flaws and errors in the majority opinion.

        Bear in mind that the most neutral definition of "judicial activism" is a judicial opinion that

        • Diamond v. Diehr didn't state that software was patentable, in any sense. It stated that:

          While a mathematical formula, like a law of nature, cannot be the subject of a patent, cf. Gottschalk v. Benson, 409 U.S. 63; Parker v. Flook, 437 U.S. 584, respondents do not seek to patent a mathematical formula, but instead seek protection for a process of curing synthetic rubber. Although their process employs a well-known mathematical equation, they do not seek to pre-empt the use of that equation, except in conjunction with all of the other steps in their claimed process. A claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program, or digital computer. [emphasis added]

          So software was confirmed to be unpatentable by itself, but--as one would expect--inclusion of a software component is not enough to render an otherwise patentable physical process unpatentable. To qualify for a patent one must claim more than just software and prior art (e.g. a computer). Most existing software patents would not meet this standard.

          So, if the Supreme Court were to suddenly claim that software isn't patentable would be going against the past 30 years of legislative history.

          On the contrary, it would be affirming the past 30 years of legislative

    • by b4dc0d3r (1268512)

      Your argument is a fallacy, because you're assuming that whoever wrote that would approve if the decision went in their favor. That might be a natural assumption to make, but there are a lot of people who believe that no decision is proper, no matter how favorable it is, if it extends the law further than the wording of the law. In that interpretation, there is no fallacy in the description. The term is heavily overloaded, but for someone who is against *any* sort of "legislating from the bench" it might

    • But software isn't a process. At most it is a description of a process, one which is only carried out when the software is actually executed. However, what exactly is a "process" for the purpose of patent law? The definition in 35 USC is infuriatingly circular:

      The term "process" means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.

      In the absence of any guidance whatsoever regarding the intended meaning of "process", the following definition entered into case law by the USSC should not be considered judicial activism, but rather merely a clarification of existing law:

      A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing. -- Gottschalk v. Benson, 409 U.S. 63, 70 (1972)

      The kinds o

  • by e2d2 (115622) on Monday June 07, 2010 @04:18PM (#32489338)

    Don't think about this topic at all! You may be exposing yourself to risk. As your counsel I advise you to not question me on these matters because that may expose you to even greater risk!

    • by fishexe (168879)

      Don't think about this topic at all! You may be exposing yourself to risk. As your counsel I advise you to not question me on these matters because that may expose you to even greater risk!

      Too late. You already violated the patent on counsel advising clients not to think.

  • The Slashdot article's Venture Capitalists seem to forget that software patents protect small players more than big plays due to: "... entrepreneurs and small, innovative firms rely more heavily upon the patent system than larger enterprises. Larger companies are said to possess alternative means for achieving a proprietary or property-like interest in a particular technology. For example, trade secrecy, ready access to markets, trademark rights, speed of development, and consumer goodwill may to some degr
    • "The Slashdot article's Venture Capitalists seem to forget that software patents protect small players more than big plays"

      It's only that, no, they don't forget it and no, it doesn't protect small players more that big ones.

      "For example, trade secrecy, ready access to markets, trademark rights, speed of development, and consumer goodwill may to some degree act as substitutes to the patent system. However, individual inventors and small firms often do not have these mechanisms at their disposal"

      It's only tha

  • At first patents seems like a good idea, you do research, you don't want to get it stolen, you patent it to protect yourself and make sure you get some revenue from this in case somone want to use your idea. Now imagine i need to go from one side of my house to the other one, i find the shortest path, great. Then i learn that somehow another person has the same house, also had the same problem than me and patented this path thought his house. Would it seems even fair that because someone patented this pat

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