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The Software Patent Debate Is Incorrectly Framed 274

Posted by Unknown Lamer
from the through-the-looking-glass dept.
An anonymous reader writes "It doesn't matter whether a true invention is implemented in hardware or software, it should still be patentable, argues Marty Goetz — the man who was granted the first software patent in 1965." The crux of the argument, according to the author: "Has there ever been a controversy about whether an invention using hardware circuits is patentable? I doubt it, even though hardware circuits are much like software in that they can be reduced to a mathematical algorithm."
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The Software Patent Debate Is Incorrectly Framed

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  • by eldavojohn (898314) * <eldavojohn@nOspAM.gmail.com> on Tuesday November 01, 2011 @08:07AM (#37905798) Journal
    I found it odd that the author didn't cover mask work rights [wikipedia.org] in the United States. They only last 10 years in semiconductor mask works and are also reducible to mathematical equations despite being amazingly complex layouts of basic transistors and connections. I would argue these are closer to mathematical equations than Goetz's hardware circuit board example.

    I'm not sure if software patents should be completely abolished, just reduced. Maybe five years? I mean, how long in the software industry until something is considered old news or common knowledge? For them to last 20 years just seems to be nothing but inhibiting of innovation to me -- and I'm a software developer! I'm one of the guys that should be benefiting from a longer term. But so far, it's only been a major pain in the ass. I'm sure Goetz could argue I'm just not "inventive" enough to hold software patents. I'd wager I'm just not up to the task of working with an army of lawyers.

    I actually take serious issue with Goetz's explanation on the second page of the article about software:

    Note that these terms are all consistent with a manufactured product: 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, repackaged, maintenance, warrants, workmanship, guarantees, errors, defects, improved, enhanced, upgraded, and models.

    Dude, you can make software development as complicated as goddamn rocket science. But at the end of the day some kid in a basement can also write software sans all that shit. I know where we work, we use Agile Methodologies, high communication, we work in very small teams and we depend on our developers not to be complete liabilities. Sure your control gates and extensive product assurance works too with just about any level of competence in your developers but I feel that's why software is so unreasonably expensive these days.

    There are plenty of resources online that get you from nothing to your first "Hello, World!" program in a matter of minutes. The same is not true of hardware circuits -- especially if you want to manufacture them at all in a commercially viable way.

    This analogy is rather flawed.

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      Dude, you can make software development as complicated as goddamn rocket science. But at the end of the day some kid in a basement can also write software sans all that shit. I know where we work, we use Agile Methodologies, high communication, we work in very small teams and we depend on our developers not to be complete liabilities. Sure your control gates and extensive product assurance works too with just about any level of competence in your developers but I feel that's why software is so unreasonably expensive these days.

      What the fuck does that have to do with anything? A kid in a basement could develop a new hardware design as well. Or invent a new mousetrap, which would be patentable. But in the end, the cost and complexity of the equipment used to manufacture an invention have absolutely jack shit to do with the patentability of that invention.

      • Re: (Score:2, Interesting)

        by Anonymous Coward

        What the fuck does that have to do with anything? A kid in a basement could develop a new hardware design as well. Or invent a new mousetrap, which would be patentable. But in the end, the cost and complexity of the equipment used to manufacture an invention have absolutely jack shit to do with the patentability of that invention.

        RTFA, that was exactly Goetz's argument on the second page:

        The software products industry is competitive and needs patent protection as much as any other tech industry. Those software doomsayers who say software is just ideas, mental processes or mathematics would change their mind if they examined the different phases of the life cycle of a software product.

        During the definition phase software companies describe its functionality, its specifications, the environment in which it must operate, and its operating characteristics. During the design phase, they develop and define all its interfaces, break down the functionality into modules, and do all the engineering so that the product can be properly implemented, maintained and enhanced during its lifecycle.

        During the implementation phase the software is debugged, tested, and goes through quality assurance. During the delivery phase there is alpha and beta testing, documentation, installation, and training. Often software companies sell the product to other companies where the software becomes a component of a larger system and is repackaged.

        During the maintenance phase the company warrants its workmanship, and guarantees the correction of errors and defects. Finally, during the enhancement phase the software is improved, enhanced, upgraded, and new models, or releases, are announced.

        Note that these terms are all consistent with a manufactured product: 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, repackaged, maintenance, warrants, workmanship, guarantees, errors, defects, improved, enhanced, upgraded, and models.

      • by mathew7 (863867) on Tuesday November 01, 2011 @09:11AM (#37906276)

        What the fuck does that have to do with anything? A kid in a basement could develop a new hardware design as well. Or invent a new mousetrap, which would be patentable. But in the end, the cost and complexity of the equipment used to manufacture an invention have absolutely jack shit to do with the patentability of that invention.

        Sure it does. Patents provide you with control over your idea and offer a monopoly to it's implementation. If you don't license your idea (which is legal), you can only obtain money if you sell end products. Those end products have high margins for SW, where you can have 90% profit easy (note: not the research and development, only manufacturing=copying), whereas a HW product will probably not have more than 50%. Also, for SW you can sell at least 10x the number of units compared to HW, since the replication of HW will take you a lot of time (let's face it, a basement kid will not have a production line). So this rough computation means you get at least 18x money in the same period. Also, the investment (R&D) is much lower in SW because testing is done much faster and cheaper than a HW product. Why do you think almost everything goes into SW?

        As for the process comparison, many SW patents are actually too small modules. Companies are not interested in quality patents, just in numbers. They throw patents hoping that 10% are approved. For instance Apple's "slide to unlock" patent I would compare it to "low-pass filter". Surely nobody used it until iPhone, but they were not many touchscreens at that time (PDAs and tablets were limited to business users). So while Apple did show the idea, it was approved too late (because of the delay in millions of other SW patents pending) and now is common because of their marketshare in the category they created.

        In summary, you have much bigger profit and faster time to delivery, but you still get the HW's exclusiveness period. This is just milking the system and NOT supporting innovation. Supporting innovation is allowing your competitor to improve your idea if you cannot or, just the fact that he can improve, to offer you an incentive to improve it first. If your idea does not catch immediately, then you are in the wrong time and deal with it: innovate more. If it does, then learn to profit in the shortest time but still innovate while in peak, don't turn into a potato-couch for the rest of your life.

    • I found it odd that the author didn't cover mask work rights in the United States. They only last 10 years in semiconductor mask works and are also reducible to mathematical equations despite being amazingly complex layouts of basic transistors and connections.

      Mask work rights are arguably more like copyright, which is why they're in the same title as copyright law. A patent restricts all machines implementing a particular function. A copyright, on the other hand, restricts only one particular implementation of a function. Likewise, as I understand it, a mask work is only one particular identifiable "amazingly complex layout" of a semiconductor; other layouts implementing the same logical function are not encumbered.

      There are plenty of resources online that get you from nothing to your first "Hello, World!" program in a matter of minutes. The same is not true of hardware circuits

      Write your logic in Verilog, prototype it on an

      • by WaywardGeek (1480513) on Tuesday November 01, 2011 @09:01AM (#37906198) Journal

        Masks are copyrighted. The designs they implement can generally be patented, but those designs are described in patents as certain interconnections of devices typically. Violations of circuit patent is generally easily verified. You just send the competitor's device to have the mask layers extracted from an actual die and run circuit extraction on the result.

        VHDL and Verilog are normally copyrighted. When they implement patented algorithms, it's effectively a software patent, which should also be banned as patenting mathematical algorithms. However, most patents are things like "Connecting a first fifo to a blah blah blah", where rather than patenting an algorithm, they patent a certain connection of circuit blocks. I would argue that is not a mathematical algorithm.

        The original authors of our patent system were wise to ban mathematical algorithm patents. Such patents present a real threat to the free flow of ideas in universities and in open source software. They hold back progress. While it is easy to find patent violations in open source software, it's nearly impossible in proprietary binary-only software. As a result, we get vague threats like "Linux violates 100 of our patents. Pay us royalties *or else*." When you ask which patents you violate, they say it's a secret. The system is so screwed up, it's unbelievable it has supporters at all. I personally have several software patents. For the first few years, I refused to file them, and only filed hardware patents, but then a competitor patented an algorithm we'd been using for years, so I gave up and patented everything that was allowed by law. The result was a huge waste of time and money at both our companies, with zero benefit. Only the lawyers win.

      • by Dog-Cow (21281)

        Patents restrict specific implementations of a specific functions. That is exactly the problem with software patents -- they are used to restrict all implementations.

        • by Sancho (17056) *

          And they don't provide the public benefit. Patents are supposed to show you exactly how to reproduce the subject of the patent. That way, when the patent expires, anyone can use the knoweldge.

          I don't see source code in many software patents.

          • This is a critical point IMO.

            The big problem with software patents, IMO, isn't that they are patents on math, but that they are so grossly vague that they have absolutely no purpose ever being patented.

            If a person of moderate experience in the field can't read the patent and make an exact duplicate of it, it shouldn't be a patent.

            -Rick

      • "A patent restricts all machines implementing a particular function."

        Are you sure that is an accurate statement? Maybe you would care to define "particular function"? We can never get far from automotive analogies - so, how about all those different brands and types of carburetors that were sold for cars? Stock carbs, aftermarket carbs, from a dozen or more manufacturers, sold under several different brand names. They all performed a particular function - mixing fuel and air in an efficiently combustibl

        • We can never get far from automotive analogies - so, how about all those different brands and types of carburetors that were sold for cars?

          Unlike copyrights, patents expire. The electronic information processing industry is much younger than the automotive industry. How long after the invention of the carburetor did those appear?

      • by makomk (752139)

        Exactly. There is actually an IC equivalent to bad software patents, and I accidentally ran across an example of one whilst searching the internet for something else. Audio codecs in modern computers used to use a standard called AC97 which had a particular layout of registers that was standardised across all devices, plus a small number of extra hardware-specific registers. Now, if you're in this situation and you needed to fit more registers in than you have space for, there's an old and obvious solution

    • by Xest (935314)

      "This analogy is rather flawed."

      Yes, and even if it wasn't, then I just read the summary as basically saying some circuit boards probably shouldn't be patentable either, not that because they are, software should be too, which was his argument.

    • This ignores the bigger issue, that software patents rarely include sufficient detail to allow others to duplicate the work. The whole point of patents is to give the tech to others.
      • A hardware patent generally describes the exact mechanism needed to achieve the result. It even comes with a diagram to help rebuild the mechanism.

        This also allowed competitors to design around the patent, finding a better or at least different way of achieving the result. This is true to the intent of the copyright clause that allows patents -- the advancement of science.

        A software patent says "it does X" and that's it, just the general idea, or the general steps to that idea. IMHO any valid software paten

  • Yeah, exactly. (Score:5, Insightful)

    by lorinc (2470890) on Tuesday November 01, 2011 @08:07AM (#37905802) Homepage Journal
    That's why all patents are just plain bullshit and should be nullified...
    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Here's a long but full analysis [ipocracy.org] by Pieter Hintens of why all patents should be nullified.

    • by trout007 (975317)

      What is the purpose of patents? To provide a temporary monopoly on an idea. The main problem is that an idea is just a tiny fraction of the work required to bring something to market. Why reward just this one aspect? The market does a great job at rewarding good products. You can have 20 companies all working off the same idea come up with 20 different products. The question is who gets to determine who gets rewarded? Should it be whoever can get the idea before a panel of experts or should it be the consum

  • by MSojka (83577) on Tuesday November 01, 2011 @08:09AM (#37905810)

    Hardware is just physics and physics is just applied mathematics, so everything can be reduced to a mathematical problem ... if you're willing to be silly and unhelpful enough.

    • Re: (Score:3, Insightful)

      Hereby inserted: http://xkcd.com/435/ [xkcd.com]
    • by Hatta (162192)

      Why is that sily and unhelpful? It's one of the fundamental truths of the universe. Everything is math.

      • However, math on its own is not patentable, and it never has been. Hardware is not just math -- math explains why it works, but hardware physically exists.

        Software, on the other hand, is purely abstract. It does not really exist anywhere, any more than the quadratic formula exists somewhere. You cannot infringe on a hardware patent by simply writing down a description of the hardware; yet that is exactly what infringing on a software patent is. That is why software is covered by copyright law -- it i
    • by horza (87255)

      You are using physics in two different senses of the word, therefore your logic does not hold. In the first instance your use of "physics" refers to the fact that everyday objects can be broken down into component parts, each of which follows a set of rules that apply at that particular level at which you are modeling (a ball being thrown, down to quantum mechanics). Your second use of the word "physics" refers to the educational discipline in which we try and develop mathematic models to account for the be

  • flawed logic (Score:3, Interesting)

    by moronoxyd (1000371) on Tuesday November 01, 2011 @08:12AM (#37905828)

    Has there ever been a controversy about whether an invention using hardware circuits is patentable? I doubt it, even though hardware circuits are much like software in that they can be reduced to a mathematical algorithm.

    So because the two things are similar in one respect they should be treated as if they are the same?
    My sister and I bear the same family name, so we are the same?

    Flawed logic at it's best.

    • Totally agree. There's a qualitative difference between hardware, indeed any physical product, and software. Namely, the economics of reproducing the product are different: The marginal cost to reproduce software is indistinguishable from zero, but the marginal cost to reproduce a physical product is at least as much as the cost of the raw materials.

      Once the development costs are mostly sunk (likely by the time you are at patent-granting stage), a software developer has all they need to produce unlimited co

    • Re:flawed logic (Score:4, Informative)

      by jellomizer (103300) on Tuesday November 01, 2011 @08:50AM (#37906110)

      So is your analogy.
      You and your sister have the same family name so when you too are compared together by name the assumption will be that you are part of the same family. Where the same family values and traditions are shared.

      Computer Hardware has the rules and logic built straight into the equipment. In theory you can make any programming language when compiled except for creating opt code it can create a circuit diagram that can be made into a chip. Once it is created it cannot be changed, without replacing the part.

      Computer Firmware has the rules and logic built into a flash chip, that simulates hardware. It is not quite hardware because it can be reflashed, it isn't quite software because it is required for operations of the device.

      Computer Software has the rules and logic saved in a method that is changeable and movable. Unlike Firmware or Hardware this can be changed while keeping the device functional and its job is to use the hardware and firmware in different methods.

      But Hardware Firmware and Software are all methods of storing Rules and Logic. The creative process in making all three is about the same so legally they should be treated equally.

      As for Patents I am under the impression that too many of them are getting passed because they are obvious where someone would come up with the same solution when faced with same problem.

      However there are some (Some that are easy to code after you see it, and some that may be a major project) that are really a unique approach to a problem that wouldn't happen otherwise, and the inventor should have rights to the idea. Yes freedom for the developer to choose how he wants to use his invention is against the Open Source Software agenda, however I think you should reward inventors and innovators.

    • by itsdapead (734413)

      So because the two things are similar in one respect they should be treated as if they are the same?

      Except that "software is mathematics [groklaw.net], and patent law specifically excludes mathematics" is a widely cited argument against software patents.

      Of course, whatever the fundamental identity is, few bits of software are derived through formal mathematical methods - and in that case it just shifts the "inventive step" from writing the code to transforming the real-world problem you want to solve into a formal specification from which you can derive algorithms.

      Plus, I'm sure that its been true for many years that

    • by deniable (76198)
      It makes some sense, as long as the test for being novel and non-obvious is still applied. If you build something new and unique in software, you should benefit. If you implement rot13, in hardware or software, you can tell your story walking.
  • by foniksonik (573572) on Tuesday November 01, 2011 @08:26AM (#37905934) Homepage Journal

    Is there any debate that a printer can be patented? No. The output of the printer however is another story altogether.

    • by alexhs (877055)

      Is there any debate that a printer can be patented?
      No. The output of the printer however is another story altogether.

      The output of the printer is what is submitted to the USPTO, so you better have it patentable or that would require all patent applications to be hand-written, in which case you could replace printer by pen which would cause the same issues :)

    • by Shimbo (100005)

      Is there any debate that a printer can be patented? No. The output of the printer however is another story altogether.

      So, can a self-replicating 3D printer be patented or not?

    • by Surt (22457)

      Is there any debate that a programming IDE can be patented? No. But the output programs are a different story. Or are they?

  • Times change (Score:5, Insightful)

    by Aladrin (926209) on Tuesday November 01, 2011 @08:26AM (#37905938)

    At one time, innovation and invention were hard to come by, and needed to be encouraged greatly. They weren't viewed as profitable and useful enough otherwise.

    Today, innovation and invention is far cheaper, faster, and more profitable. The low end of the range can have massive changes in weeks. The high end still take years, money, and knowledge.

    It's still worth protecting the high end. But 'protecting' the low end just stifles innovation. The system was supposed to correct for this by refusing 'obvious' patents. Now, either we need to redefine 'obvious', or there needs to be more unpatentable things. If you can bring something to market in a single month, there's no way that should be patentable. (1-Click, I'm looking at you!)

    But if it takes a year, then it needs protection for the creator to recoup their money.

    I don't know if it would work, but it would be an interesting twist to see patents expire when their cost has been recouped. So if you try to license patents out instead of creating the item, the best you could do would be to break even. (This would not include operating costs in the mean time, only profit, so you could probably make a decent living by stretching it out, but you couldn't possibly grow your company with it.)

  • by Overzeetop (214511) on Tuesday November 01, 2011 @08:27AM (#37905946) Journal

    Since the examiners are skilled in the art, how can they possibly apply that test? The purpose is to reward actual innovation (dare I say "strokes of genius"), not "what we were working on this week in the lab."

    • In general, the fact that no else seems to be using your idea is enough to show that it's either A) not obvious, or B) not useful. If the patent office allows you to patent a not useful idea, no one is harmed, so it's simplest for them to just assume that it is A, and not argue the inventors over how wonderful or not their ideas are.

      The main problem with this is when people file sub-marine patents as patent trolls. For example, I'm going to guess that tablets and phones will continue to integrate more sen

  • by BlueScreenO'Life (1813666) on Tuesday November 01, 2011 @08:31AM (#37905960)
    Software should be patentable *as long as the source code is released*, which is not the way it's usually done. Quoting from WTO TRIPS [wto.org] agreement, which has been signed and ratified by the vast majority of countries in the world:

    Article 29 Conditions on Patent Applicants 1. Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application.

    Emphasis mine.

    • Software should be patentable *as long as the source code is released*, which is not the way it's usually done.

      But that's the way it's done by the MPEG effort of ISO and IEC. For example, MP3 is patented, but demonstration source code for an encoder was made available. In fact, BladeEnc and LAME were bootstrapped from the ISO demo code, replacing one component at a time [wikipedia.org].

    • by kwikrick (755625)

      The problem with that is, if the patented source code is c++, does that mean a Java or Haskell implementation is not covered by the patent? Or another c++ implementation that uses completely different data structures? When is an algorithm or an implementation of an algorithm different enough not to be covered by a patent?

      The worst is: the patent offices are not able to answer these questions either. As long as they cannot answer these questions, they should not be allowed to issue software patents, or hard

    • by gbjbaanb (229885)

      yeah, this is exactly the problem. No-one cares too much about software being patented, as long as its done in a manner that shows you've actually done some work and come up with something new.

      That many of the 'software' patents are just vague concepts or pie-in-the-sky ideas is the problem. We need to make software patentable if a working system is submitted to the patent office.

      I read once that the patent system was not just to protect the inventor, but society too - as once the patent expired (or the inv

      • by horza (87255)

        No-one cares too much about software being patented

        Apart from every single software developer. Our work is currently protected by copyright law, and can see no advantage to software patents.

        Phillip.

    • All of my software patents used to come with full source code. They stopped asking for that several years ago. I don't think having source or not makes any difference. If idea is expressed clearly in the body of the patent, a coder in the field not only should be capable of writing it, but in my experience, they typically prefer to write it themselves. It's not easy to get other people to use your software, even when you give them source. I've got maybe 20 open source projects out there, and maybe thre

  • by Manip (656104) on Tuesday November 01, 2011 @08:31AM (#37905964)
    While there are a great deal of faulty patents granted, one of the larger problems Software Patents in particular face is the 20 year duration. For an industry which re-invents its self every two or three years, twenty years might have well be two lifetimes worth of work. If the duration was shorter many of the obvious junk patents would have already expired and we would be in a far healthier place.

    To solve Software Patents you can't get rid of them, we're already in too deep. But you can shorten the duration substantially and make a series of special courts who's job it is to deal with technical patents (and who employ technical experts). The courts are simply too ignorant to be able to understand what it is they're meant to be deciding. They have no expertise in the software field, or in any other special area (drugs, business processes, etc) but yet we expect these people to use their "common sense" to decide things like if slide to unlock or one-click checkout should be a valid patent.
    • Re: (Score:3, Insightful)

      The simpler solution is to stop *all* Patents, keep copyright, keep trademarks

      Patents were put in place to allow a way for people to disclose their ideas without losing the rights to it, it cut down industrial espionage, and the locking up of new ideas ... I have not heard of a Patent in years that actually discloses anything really new, and they are worded in such obfuscated legalese that it is useless for producing a working device anyway

      Ideas are still locked up, just with lawyers rather than by keeping

      • by tepples (727027)
        Without the expectation of monopoly rent, how would you finance the discovery of new drugs?
        • The sad fact is that the commercial drug companies nowadays focus on what is profitable, not what is useful. Hence their well known lack of interest in vaccines, which work too well, and interest in very expensive anti-tumor drugs which give only a few months of life but whose usage is subject to emotional blackmail.

          Medical research, like research into climate change and many fundamental technologies, is something that should always be Government funded to protect it from commercial pressures.

    • I disagree to some extent. The US system is being more strict about software patents now days, which I feel is a good thing, as the rest of the world just laughs at our software patents, and coders here in the US have to dumb down their code. IBM and many other companies have made binding commitments not to sue open source projects, and have even donated patents to an open source defense pool. Closed source projects aren't effected much by software patents because no one will ever prove you violate them,

  • ..the way they are applied?

    I don't know _enough_ about patents. I'll happily admit but it seems to me if you patented a device, hardware which does a series of sums via some circuits which have a mathematical function to them and then create another device which can do the same sums, but used a different layout of circuits and still comes up with the same result a patent for the first device wouldn't' cover the second device?

    However in software you seem to patent the idea of how to do something, and anyone

  • Reality check? (Score:5, Interesting)

    by zmooc (33175) <<zmooc> <at> <zmooc.net>> on Tuesday November 01, 2011 @08:36AM (#37906002) Homepage

    I totally agree with what he says. However, he misses the point that's called reality.

    Problems that could easily be solved in hardware, would require a description of this hardware. A transistor here, a flywheel there and a plate of metal here in order to achieve X. It's that description that is then patented, not its functional result. Alternative implementations would then not be covered by the patent so anybody that finds a way to achieve X with a piece of plastic instead of metal should not be bothered by it.

    That's not what we see in software patent land today; instead of the technical design, the functional result is patented. There are a million ways to implement slide-to-unlock and somehow Apple has a patent on all of them. That's odd, since most of these million ways have nothing to do with the original research Apple has done in order to obtain the patent.

    If the same standards for granting a hardware patent would be applied to software patents, I could probably live with them (since in that case there would hardly be any software patents). Now I cannot, especially not when selling software in the USA.

    Also, mathematical formulas cannot be patented. Therefore the comparison with mathematics is moot. What can be patented, is the practical use of that specific formula. Also note, the patent Marty Goetz was granted was not a software patent in the sense that we think of it today; his patent was valid ONLY when used on a machine using two tape reels. A pure software implementation would NOT have been patentable. Therefore using this patent as an example of a software patent is misleading; it is not a software patent, it is a regular patent that has part of the solution implemented in software.

    • Apple does not have a patent on "slide to unlock". Their patent includes several specific features including the moving visual slider under the finger as you slide to unlock. It's a pretty specific patent and one that's easy to work around. It's a REALLY bad example to use as an example of a bad software patent.

      • by zmooc (33175)

        I think it's a great example. Whatever the slider does does not make it more or less patentable; it is still just a functional description. This should not be patentable unless the patent concerns a very specific technical implementation. And that's not the case (obviously because any implementation would be too obvious to patent).

        For these kins of things, we have copyright laws.

        • patents protect both the concept and implementation of an invention. Otherwise it would just be a fancy form of copyright allowing derivative works without compensating the original inventor.

          As for the "obviousness" of a patent, most things are pretty obvious when someone else figures it out for you. I think the obvious argument is being a little over used. It's almost to the point of the old "I could had a V8" vegetable juice commercial. For example:

          Intermittent windshield wipes seems obvious now, but it

          • by makomk (752139)

            As for Apple's "slide to unlock" patent, it seems novel to me. I don't recall anybody else using a similar method of unlocking a phone prior to Apple's implementation of it.

            Prior to the invention and manufacture of cheap capacitive touch screens it wasn't practical to do so; resistive touch screens aren't that good at detecting finger swipes and it's fairly pointless with a stylus. Apple didn't invent those, they were just the second to release a phone with one. (The first was the LG Prada. Apparently it had software limitations that made swipe gestures impractical due to the hurried development.)

      • by horza (87255)

        including the moving visual slider under the finger as you slide

        So something anybody has been able to do a couple of decades ago running Windows 95 with a touchscreen over their computer monitor?

        Phillip.

    • It's not just mathematical formulas that in theory are not patentable, but mathematical algorithms. If the US PTO stuck to it's mandate, rather than caving to pressure, it would never have allowed most software patents. Now "slide to unlock" and such things can be considered a design patent, though they should also be disallowed. As they say, if the big auto companies each patented their interface to their cars, you'd have to re-learn how to drive when you bought a new brand. We'd have steering wheels i

  • Absolutely right (Score:5, Insightful)

    by TheRaven64 (641858) on Tuesday November 01, 2011 @08:37AM (#37906004) Journal

    The problem with software patents is not that they are software, it's that the vast majority of them are obvious and they tend to be overly broad. Anyone encountering vaguely the same problem would produce the same solution, or one sufficiently similar that it would be covered by the patent.

    The other problem is that patents really fail at their primary purpose: encouraging disclosure. No one looks for algorithms by doing a patent search. People look for published papers, existing libraries, or invent something themselves. Any one of these can end up violating a patent, but without gaining any of the advantages of the patent system.

    People campaigning against software patents often get bogged down by assuming that this is something that is limited to software patents. It isn't. Talk to people in almost any industry, and you'll hear the same thing. They either have big cross-licensing agreements that let them ignore all patents and just keep out new people, or they find themselves constantly having to pay royalties for things that they invented independently.

    I would have no problem with software patents if they were limited to the scope that the patent office claims: novel, non-obvious, useful. If this happened, I doubt even 1% of current patents would stand up.

    • The other problem with software patents vs hardware patents is that if I design a circuit board that is physically different, but generates the same output, the patent on the original does not apply. With software, if the software generates the same output with the same input, it will generally be considered to be infringing on the patent.
    • by swillden (191260) <shawn-ds@willden.org> on Tuesday November 01, 2011 @09:37AM (#37906590) Homepage Journal

      The other problem is that patents really fail at their primary purpose: encouraging disclosure. No one looks for algorithms by doing a patent search.

      Mod parent up.

      I've been saying this for a long time; the purpose of patents is to encourage disclosure so that others will be able to find and use your ideas (after paying a license fee -- that's the motivation to disclose). So the clearest test of whether or not the system is working is the degree to which working professionals utilize the patent database as a resource for solving their problems, and by that standard it's hard to imagine how the system could be a greater failure. Not only do software developers not mine the patent database for ideas, they are told by their attorneys to avoid looking at patents. Why? Simple: Because everyone recognizes that there is nothing of value to be found, and looking only creates risk because if you find out something you're doing is patented then you have to stop, or risk treble damages for willful infringement.

      The bar for patents is so low, and the number of non-obvious patents so few, that there's no value in searching for patents. This makes it abundantly clear that the patent system has become a mechanism for locking up ideas, not for disseminating them, which means it has utterly failed its fundamental goal.

      Patent reform is badly, badly needed, because right now the system we have is actually worse than nothing. I think a good patent system would be of value, but what we have now actively discourages innovation and squelches progress, at least in the software realm.

    • The other problem is that patents really fail at their primary purpose: encouraging disclosure.

      Exactly! They do the opposite. They force companies to keep their software secret, rather than disclosing source, to reduce the chance of being sued for software patent infringement.

    • by Shark (78448)

      I would have no problem with software patents if they were limited to the scope that the patent office claims: novel, non-obvious, useful. If this happened, I doubt even 1% of current patents would stand up.

      That sort of works for me, but then why stop at 1% ? The basic idea behind patents was supposed to serve the population at large and rewarded the owner with a limited time monopoly for such service. Right now, the service is irrelevant with regards to the enforced rewards of such monopoly. Come to think of it, it's a lot like most government initiatives: good intentions, a brief moment of okay results, terrible long term consequences. A good example of this is education: The intention is to have more

  • by Nerdfest (867930) on Tuesday November 01, 2011 @08:40AM (#37906026)
    The big difference is that with a hardware patent, you can still do the same thing as the patented implementation but in a different (ind ideally, improved) manner without infringing on the patent. With software, the idea itself is patented, meaning you can't even come up with a vastly superior implementation. In my view, this (along with the fact you don't even seem to have an implementation to get the patent) is the most important part of why software patents are a roadblock to innovation.
  • Circuits; code; cars.. they can -all- be reduced to a series of mathematical functions. But that means nothing and does not make them worthy of being patentable. Patents should only protect the big ideas; ideas such as making transistors on silicon; making wheels with inflated pneumatic tubes on them, using a quartz crystals to make tuned circuits (to use some very old examples).

    The reason is that 99.9% of our modern 'patents' do not represent any real innovation; they only represent iteration; finding diff

  • Software is no different than any other written material. These writings are expressions of ideas - nothing more. Software should be protected by copyright and not by patents.

    Things or processes that exist in the natural world, including the mathematics to describe those things or processes should not be patentable. Patents should be reserved for physical devices that are unique and non-obivous to someone skilled in the art.

    At this point in our human history, patents should be extremely rare, granted only

  • by robbak (775424) on Tuesday November 01, 2011 @08:43AM (#37906044) Homepage

    The point is, not that software can be reduced to maths, but that no reduction is necessary. A software program is maths. Already. A programming language is simply a language for writing down maths. It just happens to be one which computers can understand too.
    These are simple statements of fact. Like global warming, they are facts that corporations just want to ignore.

    • by pclminion (145572)

      A programming language is simply a language for writing down maths.

      Uh, no. If "a specific procedure for accomplishing a task" constitutes math, then the instructions on the back of a shampoo bottle are math. Sorry dude, they are not.

  • by spottedkangaroo (451692) * on Tuesday November 01, 2011 @08:44AM (#37906056) Homepage
    ... apparently circuits should not be patentable. Basically anything that's obvious or just the next logical step (even if clever) should not be patentable. So if he's right then we should see circuit design as just another program and get rid of those patents too.
    • Basically anything that's obvious or just the next logical step (even if clever) should not be patentable.

      This is already the law, but examiners have historically had a poor time judging obviousness.

  • by DoofusOfDeath (636671) on Tuesday November 01, 2011 @08:47AM (#37906078)

    Let's grant, for the sake of argument, that software patents should be no different than regular patents.

    I want proof that patents at all are a net benefit to society. Could they possibly be worth the damage to our freedoms, and our pace of innovation?

  • The issue with the way software patents are enforced currently is that, unlike a physical invention, you can't come up with a completely different approach to implement the idea and not violate it. In the physical domain, clean room reverse engineering is allowed, but software patents have been allowed to be so ambiguous your implementation is probably covered.

    I think software patents could be fine as long as they are specific to a SINGLE IMPLEMENTATION of an algorithm or idea. If your patent was implemente

  • you shall not....!

    -

    when algorithms become patentable/protectable, the next will be recipes etc....

    .

    THOU SHALL NOT ....!!!!

  • Most software patents handed out theese days, are about the first solutions that entered the head of the first person trying to do something. Unless the problem can be given to (in this case) a reasonably competent developer without him coming up with the same solution - the inventor is not giving anything of value to the public in return for his monopoly.

    A few software inventions like: arithmetic coding and the RSA cryptosystem pass this test - whereas things like the FAT filesystem patents, and most other

    • and the RSA cryptosystem pass this test

      Remember that exactly the same algorithm was invented (in secret) by someone else 5 years prior to the publication of RSA. In other words, it is very debetable that it was a good candidate for patenting since someone else came up with exactly the same thing.

  • Software is not just math. Software is an embodiment of a process. The programmer must reduce the process to a specific set of instructions, which eventually end up as a set of logical operations and data movements/transformations. However, it took a whole lot more than math to create the process.

    Saying software is just math is a gross oversimplification of the facts. It's comparable to saying all engineering is just math, writing is just pressing keys, and music is just a series of notes. By that reasoning

    • by Zironic (1112127)

      It takes a lot of work to create advanced mathematical equations. Saying software is just Math is not an oversimplification, it's simply that you seem to underestimate Math.

  • by Zironic (1112127) on Tuesday November 01, 2011 @09:01AM (#37906188)

    "The software products industry is competitive and needs patent protection as much as any other tech industry. Those software doomsayers who say software is just ideas, mental processes or mathematics would change their mind if they examined the different phases of the life cycle of a software product."

    Last time I checked the people that were opposed to Software Patents where almost exclusively Software Engineers, since almost no one else is aware the issue even exists.

    Is he trying to say the Software Engineers do not understand their own product?

  • His position is so abstract that it does not reflect reality.

    What is the hardware equivalent of Bezos' One Click patent? A binary switch? With software/business patents the way they are, you can patent trivial features and then extract fees or at least gum up the works for actual innovation. Do hardware patents allow someone to patent a set of logic gates and then scan all existing designs for that subset of logic? That would be the equivalent situation.

    Do hardware designers have to not use obvious logic

  • You patent a hardware implementation of an idea. Software implementations are already protected by copyright. Software patents are being used to patent the idea itself. This is not how patents are supposed to work.

    This is a very biased article full of half-truthes from a man who thinks that the bigger half of the world are "anti-patent zealots".

  • Even school children are taught about patents, that a patent protects the execution of an idea, not the idea itself. I've yet to see a software patent that passes this test.
  • Shocker: Man With First Software Patent Defends Software Patents

    Well, using other people’s knowledge and work. But let’s disregard for a moment the fact that anything he ever created built upon other code. He goes on to saying something which in no way contradicts the fact that software is mathematics and in fact reinforces this fact. For example: “Highly skilled personnel are employed in these companies and many have advanced computer science degrees, including PhDs. And because of their complexity, many programs are written using software engineering disciplines.”

    Or mathematics? And equations? Seriously, scientific programming is all about formulating rules and applying them in code. Do we want a monopoly on rules that are immutable? “When these programs are inventions,” he claims (whatever “invention” actually means), “patent protection is important to help protect these companies’ investments.”

    http://techrights.org/2011/10/31/martin-goetz-mistakes/

  • I have a problem with trivial patents and the examples of trivial patents have often been software patents. When someone actually creates a useful invention in software and it's non trivial, I think they should reap the rewards of it. That encourages people to go work on hard problems that otherwise might be ignored as unprofitable. Unfortunately what often happens is that someone goes out and solves a problem in a fairly straightforward way, a way that most of us would have solved the problem had it bee

  • I can see in some cases the patents can be used on software, like if you spent years developing an encryption algorithm. That could take years of research with results easily duplicated once known, but for the majority of software, there are enough barriers of entry to protect its creators.

    Good software is more about the implementation of ideas than the idea themselves. Anyone can hack together an idea into a simple prototype. Implementing it in a solution that is robust and competitive in the market is

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