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A Defense of Process Patents 249

Posted by timothy
from the just-world-hypothesis dept.
An anonymous reader writes "In light of the ruling against the University of California patent trolls seeking to claim ownership of the 'Interactive Web,' founding attorney of Beacon Hill Law Joe Stanganelli, has written an article defending process patents. In it, he refers to technology pundits as 'bizarro' and argues that it's a misconception that patents stifle innovation. As he writes, 'What I do not understand is — had the jury determined Eolas's patents valid — why it would be A-OK for dozens of already megarich corporations to get even richer adopting technology they did not invent or have legal permission to use, but somehow immoral for the actual creators of the technology to likewise profit[?]"" I am not a patent lawyer, but I doubt I'm the only one who thinks it's possible to support a patent on an industrial potash processing technique, but not software patents — or at least to distinguish them from each other.
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A Defense of Process Patents

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  • by tibit (1762298) on Sunday February 12, 2012 @11:32AM (#39011033)

    What I do not understand is — had the jury determined Eolas's patents valid [...]

    Let's be blunt: that makes the jury look stupid, not the patent somehow ethically OK. The patent was nothing new, there was plenty of prior art. They got lucky with a silly examiner, that's all.

  • Re:Its obvious (Score:5, Insightful)

    by Pinky's Brain (1158667) on Sunday February 12, 2012 @11:40AM (#39011095)

    Ah, but this means that obviousness is a judgement call by a skilled practitioner. Such a purely subjective metric is something lawyers will NEVER accept ... because it shows just how stupid patents really are when you need a jury of highly paid engineers to even be able to judge the validity of a patent. Every lawyer devised test for obviousness has boiled down to prior art, they will not stop trying to redefine the word obvious.

  • Re:Hey DCTech (Score:2, Insightful)

    by jordanjay29 (1298951) on Sunday February 12, 2012 @11:42AM (#39011105)
    So far every company has agreed? Oh, well Barnes & Noble must have changed their stance and paid up, then.
  • Re:Crypto Patents (Score:5, Insightful)

    by TheSpoom (715771) <slashdot@ube r m 0 0 . net> on Sunday February 12, 2012 @11:49AM (#39011143) Homepage Journal

    Someone who profits from the situation, who can ignore all the societal implications of the actual patents, could defend it quite well. Like, say, a patent lawyer.

  • Patents on math (Score:5, Insightful)

    by betterunixthanunix (980855) on Sunday February 12, 2012 @11:49AM (#39011147)
    We are not supposed to have patents on mathematics, yet that is exactly what software patents are -- especially patents on signal processing techniques, cryptography, etc., which are the patents that most severely threaten innovation.
  • Re:Patent Trolls (Score:5, Insightful)

    by andydread (758754) on Sunday February 12, 2012 @11:52AM (#39011163)
    It looks like the trolls are flooding slashdot lately. Microsoft PR department is a powerful beast and they pay these trolls to spread misinformation on blogs and the like.
  • by betterunixthanunix (980855) on Sunday February 12, 2012 @11:53AM (#39011173)
    Process patents were supposed to be granted on manufacturing processes that are not truly mechanical -- for example, processes involving complicated chemistry. That is fine, it is certainly in the spirit of the patent system and not simply "using someone else' invention for what it was intended."

    Somewhere along the line, though, we got industrial processes confused with mathem^H^H^H^H^H software.
  • by Teppy (105859) on Sunday February 12, 2012 @11:54AM (#39011175) Homepage
    I've noticed that most language in contracts is copied and sometimes tweaked language from other contracts. So, suppose as a lawyer you were required to negotiate a license for every sentence that wasn't your original text. Or more analogously, you were liable for even inadvertent use of phrasing that someone else had created first. For example:

    Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

    Have you ever used that phrase in a contract that you charged a client money for? It (or some minor variation) appears in license agreements from Microsoft, Adobe, Apple and Sony. And I'm pretty sure they don't all use the same lawyer. *I* would never have come up with that phrasing, but perhaps it's obvious to you, someone skilled in the art of contract law. Well, same thing for us software engineers - most of the software patents we see, and nearly all of them in the particular area of software that we specialize - are equally obvious.
  • Re:Hey DCTech (Score:5, Insightful)

    by errandum (2014454) on Sunday February 12, 2012 @11:59AM (#39011207)

    Google does have an R&D department, but you should also notice that most of that "research" that Andoroid has to pay for is based on overly broad patents that were granted before there was any kind of scrutiny.

    The big problem is, it seems to be more expensive to take microsoft to court and go through a long legal battle than simply pay for them, and that's why almost no one does.

    I'm all for patent licencing when you've actually done something good, but describing a general idea like this http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=5,778,372.PN.&OS=PN/5,778,372&RS=PN/5,778,372 [uspto.gov] or this http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=6,339,780.PN.&OS=PN/6,339,780&RS=PN/6,339,780 [uspto.gov]

    Did you invent a new protocol that speeds up mobile computing? Did you develop a new communication device that revolutionizes anything? Then you should be compensated. But don't say that "a device with a screen and that has a browser and when the browser loads we show an icon moving" is innovation and should be worth 500 million dollars.

  • Re:Hey DCTech (Score:3, Insightful)

    by Barsteward (969998) on Sunday February 12, 2012 @12:02PM (#39011227)
    bollox, every other one that has paid up has a Microsoft license to protect.
  • by Software Geek (1097883) on Sunday February 12, 2012 @12:20PM (#39011339)

    it's a misconception that patents stifle innovation

    The problem with software patents is that the legal standard of patent quality is too low. Something can be patented if it is novel and not obvious. I can write something that is novel and not obvious in an afternoon.

    If I patent my afternoon's work, that doesn't enable me to sell it. So patents don't help me the innovate. On the other hand if tens of thousands of other people patent various things I could do in an afternoon, I am now legally obligated to respect all those patents, never doing any of those things unless I first negotiate a license with them. And I can get sued into bankruptcy if I make a mistake. And so the cost of avoiding infringing on low quality patents gets added to the cost of software development.

    The patent system provides an incentive to be a software patent troll. It does not provide an incentive to develop software for people to use.

  • Re:Crypto Patents (Score:5, Insightful)

    by PPH (736903) on Sunday February 12, 2012 @12:24PM (#39011365)

    What is the difference between an algorithm and an industrial process? Aren't they both "recipes"? If so, should both be patentable? or neither?

    Neither. You should be able to copyright the implementation of an algorithm. But anyone who goes back to the first principles and derives their own implementation should be free to do so.

    With industrial processes, it would be similar. You can't just copy some companies process documentation and build your own production line. But its that misappropriation which should be the crime.

  • Patent problems (Score:5, Insightful)

    by geoskd (321194) on Sunday February 12, 2012 @12:26PM (#39011381)

    it's a misconception that patents stifle innovation

    No it isn't... They Do [techrights.org]

    The author is a lawyer, so its no wonder he is defending the legal system. It pays his bills. Take the whole thing with a gigantic grain of salt.

    -=Geoskd

  • Re:Hey DCTech (Score:5, Insightful)

    by postbigbang (761081) on Sunday February 12, 2012 @12:31PM (#39011405)

    .....then you should be compensated....

    Snarl, snort. Feed the troll, especially the attorney in the post.

    The problem is much deeper than what you can cover in a slashdot reply, but I'll try to capture the salient points:

    1) the US Patent Office process is broken, and despite attempts to the assuage the problem, it grants patents to unbelieveably looneytunes stuff.

    2) ideas shouldn't be patented, but they are granted patents, see #1

    3) there is no model for compensation, rather, it's what the "inventor" desires, or wants to do battle with, so the output of the process is unpredictable in almost every way; it's a compensation plan for attorneys, not a business model

    4) standards and protocols should never be patented, for they are agreements and processes, not inventions. You can't patent math because math is prior art. Algorithms, presentation values are all math. Attempts to patent genes should be met with life without parole: life is prior art.

    The life of patents is dubious, and getting worse now that the madmen of media have allowed retroactive protection for "works". It is out of control, and the attorney in the post is indeed snacking from the insanity.

  • No patents please. (Score:5, Insightful)

    by AnotherBlackHat (265897) on Sunday February 12, 2012 @12:42PM (#39011487) Homepage

    Imagine this story: University scientists, working diligently in their lab, invent something world-changing. Several big corporations steal the invention for themselves, making billions of dollars in profits. The scientists receive nothing.

    You don't have to be a professional folklorist or ethicist to conclude that the scientists are the good guys and the corporations are the bad guys.

    Imagine this;
    Business has a problem.
    They hire a software engineer to solve that problem.
    The software engineer, working entirely on their own, writes a piece of software that solves that problem.
    Business implements the software.
    Patent holder sues business because software violates holder's patent.

    It might take a professional folklorist or ethicist to determine who's the bad guy in that situation.

    Now imagine a third scenario;
    Business has a problem.
    They hire a software engineer to solve that problem.
    The software engineer, working entirely on their own, writes a piece of software that solves that problem.
    Business asks if the software violates any patents.
    No one has any idea.

    Even a folklorist or ethicist won't help you resolve the patent issue in that third scenario.
    And that's the real problem with software patents.
    It's not business knowingly using an invention and not paying for it's development.
    It's not business being forced to pay for something they didn't use.
    No, the problem is not knowing.

    Software engineers are notorious for reinventing the wheel.
    We often don't look for existing solutions because it's easier to reinvent them than to find them.
    I don't believe anyone in the current lawsuit read Eolas's patent and said "nice idea, it's mine now."
    But they did have to go to court over it.

    Only a lawyer would think that's a good thing.

  • by Anonymous Coward on Sunday February 12, 2012 @12:56PM (#39011581)

    Microsoft sells their patents to Intellectual Ventures, which creates companies that sue the competition. Intellectual Ventures was set up by Microsoft executives for just this purpose. Apple does no better. This is all made clear here:

    http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack

    Many "features" of both operating systems appeared in open source code first. Fortunately for the corporations, first to file is law of the land now. So are ridiculously long patent lengths. I wonder who paid for those changes in the law over the years.

    IANAL, but I have gone toe-to-toe with several and have never lost. What Joe Stangenelli writes is based on simple debate tactics. In order to buy this lawyer's arguement, one must accept that software is "invented". The bottom line is that all software written for a flexible platform is not "invented". The very nature of the computing platforms and languages such as B.A.S.I.C. (The "A" stands for ALL-PURPOSE) indicate that ALL software that is written was intentionally made possible by the hardware manufacturer. Add to this that all software is reducable to math, and there is no valid arguement left to patent software.

    Joe Stangenelli compares software patents with process patents, but fails to find the difference. Does the making of potash, or the process of pasteurization require a computer? Can these processes be reduced to math. The answer is a definitive "No" and that is where the comparison ends.

    Joe Stangenelli also compares obtaining software patents to Warner Brothers obtaining permission from J.K. Rowling to make Harry Potter movies. Clearly he has trouble distinguishing the difference between copyright and patents. This makes his other arguements even more suspect.

    I hate to say it, but Joe Stangenelli appears incompetent in his logic. Perhaps it is an intentional effort to effect the weak minded. Perhaps it is a failure of his training. Either way, Joe Stangenelli has clearly demonstrated the difference between intellegence and wisdom.

  • by Staale Nordlie (943189) on Sunday February 12, 2012 @01:11PM (#39011675)

    Patents exist solely to promote innovation. Or, more specifically, "science and the useful arts". There is plenty of evidence that traditional industrial patents do exactly that.

    Cite?

  • by hawkinspeter (831501) on Sunday February 12, 2012 @01:15PM (#39011705)
    Patents don't "promote the sciences and useful arts" because Copyright does.

    That said, I agree with your sentiment. Patents are supposed to provide a benefit by allowing companies to use inventions which would otherwise be secret. Nowadays, patents are granted for "obvious" things and provide a minefield whereby anyone trying to invent something inevitably infringes someone's patent and becomes liable even though they may not have seen the original patent.
  • by theshowmecanuck (703852) on Sunday February 12, 2012 @02:30PM (#39012181) Journal

    Say, someone discovers a way to convert scrap metal to gold
    That person should be allowed to have a patent on it
    But someone shouldnt be given a patent for facilitating video conferencing by piping images from a camera to the local PC and then over a network to the remote PC

    Yes, that is correct. What's the issue? A number of different programmers can come up with as many solutions to your coding example as there are programmers. A patent should not cover every method of catching a mouse. It should only cover a specific method; otherwise nobody would be able to get rich building a better mousetrap (to use the old saw). So if the person wanted to get very specific on how to send your video signal that would be what is needed for a fair patent. And I'm talking down to the code level because that is where the differences are. But that is not needed because copyright already covers that. And besides code is just a form of algorithm which I don't believe is patentable. Process patents are too vague/non-specific to be a fair patent.

    Imagine if the criteria for process patents made it into main stream industry: they would prevent a person from building the proverbial better mousetrap: I patent a mechanical technique for capturing and/or killing a mouse when it triggers a sensor which can be mechanical or electronic... now no-one can patent a better one because that is so vague it covers it all. In your example, a programmer might be able to figure out a faster way to send the video by some sort of new compression technology algorithm he or she develops, but wouldn't be able to implement it because the over all process is patented already. I don't believe this was the intent of patents when they were first implemented, nor do I think it is a fair or just way to implement them now.

    Maybe this is what has happened since we allowed business school types to somehow convince so many that the process is more important than the work or output. Or maybe it is because we allowed the 'Big Thinkers' into the picture; those that like to spout shit but never do anything, and still feel like they are owed a bundle (you know, like Wall Street bankers, lawyers, patent trolls, most executives, the modern bonus eating CEO...). But that is another story.

  • Re:Patents on math (Score:4, Insightful)

    by gstrickler (920733) on Sunday February 12, 2012 @04:14PM (#39012987)

    Software isn't just math. If you claim that software is just math, then all engineering is just math. So, all products that require engineering to produce are simply math. Next, all design and architecture is just math, because actually implementing it is strictly an engineering (e.g. math) problem. It's an absurd claim based upon a faulty premise.

  • Re:Patents on math (Score:5, Insightful)

    by betterunixthanunix (980855) on Sunday February 12, 2012 @04:49PM (#39013253)

    Software isn't just math

    Oh yeah?

    https://en.wikipedia.org/wiki/Church-turing_thesis [wikipedia.org]
    https://en.wikipedia.org/wiki/SKI_calculus [wikipedia.org]
    https://en.wikipedia.org/wiki/Haskell_(programming_language) [wikipedia.org]
    https://en.wikipedia.org/wiki/Prolog [wikipedia.org]

    If you claim that software is just math, then all engineering is just math

    No, claiming software is math is like claiming that engineering designs are math. The difference is that engineering designs are not useful until a physical system is built based on those designs, while software is useful regardless of how it is implemented. You cannot use the description of a bridge to drive your car over a body of water; you can use a description of a computer program to compute whatever the program computes. A computer program is purely abstract, like a number (in fact, computer programs can be represented as numbers, and can be used even when given in that representation), and computer programs operate on purely abstract things, and output purely abstract things. A computer program cannot build a car, it can only be used to compute how some specialized hardware can build a car.

    If you are curious about the mathematical nature of software, I recommend reading any number of theory of computation texts; Sipser's book is widely used in CS curricula, but Kozen's book is also a good illustration. You might also want to read a book about lambda calculus / combinator logic if you are interested in formal ways of describing computer programs.

    As I have said elsewhere, I draw the line at abstraction. Software is absolutely abstract; bridges, buildings, microchips, chemical processes, etc. all have to be physically realized in some way.

  • Re:Hey DCTech (Score:4, Insightful)

    by jedidiah (1196) on Sunday February 12, 2012 @05:14PM (#39013417) Homepage

    People tend to cave when it comes to bullies. The cost of trying to fight us usually considered too high. The struggle itself can be expensive regardless of whether you win or lose.

    That is why any patent or copyright is "stifling". It gives obnoxious people the idea they have cause to bother others. It doesn't matter if it's Microsoft, Apple, or Harlan Ellison.

Machines certainly can solve problems, store information, correlate, and play games -- but not with pleasure. -- Leo Rosten

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