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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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  • Hey DCTech (Score:1, Interesting)

    by Anonymous Coward on Sunday February 12, 2012 @10:34AM (#39011055)

    How are ya?

    I know I'm not supposed to feed a troll, but what do you call MS's vague threats over Linux and Android?

  • by evanbd (210358) on Sunday February 12, 2012 @10:36AM (#39011065)

    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. There is very little evidence that software patents do so, and plenty of evidence that they stifle innovation.

    This isn't about morals. It's about asking what bargain society wants to make with innovators, in order to promote innovation. The software patent bargain is helping neither society at large nor innovators. Making sure that the lawyers like it is not one of the goals here.

  • Crypto Patents (Score:5, Interesting)

    by betterunixthanunix (980855) on Sunday February 12, 2012 @10:39AM (#39011089)
    Patents on industrial processes are not the same thing as patents on mathematics, and that is what cryptography patents are. At one time it was RSA that was patented, and the RSA patent contributed to the stagnation of cryptography deployment in the early days of the Internet (we are still feeling the effects of that now). Today, it is elliptic curve crypto that is being mired down by patents, and cutting edge cryptographic technology is languishing in obscurity because of it. Patents have been granted on lattice crypto, which is even more obscure than ECC.

    Mathematics is not supposed to be patentable, yet somehow these crypto patents -- which are really just patents on algebra -- have been granted, and our national security is threatened by it (the NSA has licensed some ECC patents for use in certain security sensitive contexts, but that is not even close to what we need). That anyone could defend that situation is mind boggling to me.
  • Re:Patent Trolls (Score:5, Interesting)

    by Moryath (553296) on Sunday February 12, 2012 @10:48AM (#39011141)

    In turn, take a look at Google who is outright buying companies to make their patent war-chest larger and larger. They're somewhat new company so they're only been preparing their chest now.

    Meanwhile, how many companies have already filed patent lawsuits at Google already? I don't like it, and I definitely see it as a sign of how broken the patent system is, but Google's doing the same thing that most other big corporations do - they're trying to make sure they have a large enough patent war-chest that when the next group sues them, they can force it into a "well this guy says we're violating patent X, but they're violating our patent Y themselves" settlement scenario, the same sort of thing that happens all the time between big companies (look at the "patent-sharing access" agreements between, say, Intel and AMD).

    It sucks, because it makes the patent system about fucking over the smaller companies and ensuring the big semi-monopolies are the only ones who can play on a level playing field. But that's how it works and WHY the patent system needs drastic reform.

  • by wisty (1335733) on Sunday February 12, 2012 @10:59AM (#39011199)

    OK, since no-one read TFA, let alone TFA's comments:

    TFAuthor clarifies his position:

    >Traditionally, the "patent troll" (or "[whatever-kind-of-IP] troll") term has been reserved for companies that buy underenforced IP and then make money by litigating it. FWIW, I have little inherent problem with this "trolling" act either because it's simply investing in an asset (the particular IP) that is obviously well in demand. The original creator wins by being able to realize a purchase price for his creation without having to go through the trouble of managing the IP, and the investor wins through selling licenses and/or getting judgments and/or settlements on violations. In practice, of course, there have been legal system abuses, but that should not speak to the inherent practice.

    In other words, there's no problem with leaving a bunch of cookies on a table, then selling the rights to cookies to a debt collector, who shakes down everyone who ate one for a fair price (determined through a process of valuing their kneecaps).

  • by betterunixthanunix (980855) on Sunday February 12, 2012 @11:37AM (#39011455)
    Except that a chemical process operates on real, physical matter, while software operates only on abstractions like numbers. Software is entirely abstract; the closest an algorithm comes to an industrial process is computing how some industrial process should be carried out (which, if memory serves me, was the subject of the first software patent). I draw the line at abstraction -- something which is completely abstract should be beyond the reach of the patent system, which is logic behind the existing rule that mathematics cannot be patented (except when we allow it to be patented e.g. DSP patents, crypto patents, etc. -- all forms of software patents).
  • by geoskd (321194) on Sunday February 12, 2012 @12:12PM (#39011683)

    Its difficult to draw a line Say, someone discovers a way to convert scrap metal to gold That person should be allowed to have a patent on it

    Why? If that person just simply used their machine to produce and sell the gold, they would have no need of ever letting on that they even have it.

    Lets use something a little more practical. The person(s) who designed the class D amplifier for example. It was a borderline idea. It was novel enough that most engineers wouldn't have thought of it, but about a handful did. It only missed being patented because the first ones to market were from academia back before the patent furor started in the mid 20th century. They all made quite a tidy bit on money selling motor controllers based off their amplifiers. Even today, many people come up with good alternative amplifier designs. Many of those designs are patented, but the patents are not what keeps the companies like Bose in business. What keeps them selling product are the more evolutionary things, like adding multichannel support for surround sound, adding MP3 playback ability, adding multi-room support, and other features that come from a marketing perspective instead of an engineering one. If Bose stopped improving on sound quality today, and focused solely on producing better and better feature sets, they could probably survive a long long time without ever filing for another patent. The only trouble they might run into would be if some idiot granted an overly broad patent on something like using a network to do X...

    Toilet paper manufacturers seem to have no trouble staying in business without needing to sue everyone in sight over patents. Makes you wonder...

    -=Geoskd

  • Re:Patent Trolls (Score:5, Interesting)

    by MightyMartian (840721) on Sunday February 12, 2012 @12:35PM (#39011871) Journal

    Microsoft has always done this. I've been on Slashdot now about nine years and Microsoft has frequently astroturfed this place. And then every year or so there will be the quisling that Microsoft hires from the open source community to be in charge of whatever-they're-calling-their-Linux-lab-now, who will inevitably come here with an olive branch... dipped in arsenic. And let us never forget the level pro-SCO astroturfing that went on here in the day, and you still get a few of those old trolls making rude noises about Pamela Jones. Some, if not all of those guys were ultimately being paid by Microsoft, one way or the other (well, except Daniel Lyons, a fucktard of such incredible stupidity that he actually did it for free).

  • by EdwinFreed (1084059) on Sunday February 12, 2012 @01:02PM (#39012027)
    I'm a co-creator of MIME. I was recently interviewed about it, and one of the questions that came up was why we didn't patent it?

    The obvious answer is it simply didn't occur to us, but even if it had, I very much doubly we would have done it. Our primary purpose was to change the capabilities of existing and future email systems in a fundamental way. (A secondary purpose for me at least was to drive a stake through the heart of X.400 - having just done an implementation of that mess, I was deeply worried that its very limited multimedia capabilities would drive its deployment in place of the much simpler Internet email protocols, and the entire world would have been much worse off had that happened.)

    But neither of those goals could possibly have been met by patented technology. To be successful we needed as many implementers to adopt the technology as soon as possible, and a patent would have prevented that. (One of the reasons MIME is a bit ugly in places is because we believed that being able to implement and deploy it on top of existing infrastructure trumped design niceties.)

    And while I can't speak for Nathaniel or Keith, it was certainly possible for me to profit from our work without a patent. But I did it the old fashioned way - by building a good implementation and selling it.

    Of course there are situations where patents make sense, like to protect small inventors who come up manufacturing process or whatever. But there are lots of cases where they don't, and right now things are canted much too much towards patenting everything, even in cases where it actively stifles innovation and progress.
  • by oxdas (2447598) on Sunday February 12, 2012 @04:14PM (#39013419)

    If the software patent system worked that way, I don't think people would have a problem with it. As it is constructed now, though, software patents are so broad that they are purely conceptual. This is akin to patenting using chemistry to perform a specific task, instead of on specific chemical process. When I look at a software patent, I use 4 tests to determine if I believe it should have been granted.

    1) Does it fulfill its purpose of contributing to the useful arts and sciences?
    test: Can an expert in the field recreate their EXACT process or invention by using nothing more than the patent documents? Most software patents fail here because they do not actually cover a fixed number of implementations, but rather all possible implementations.

    2) Is it a patent on a specific instance or on an idea or concept?
    test: Using the idea or concept demonstrated by the patent, is it possible to create another non-infringing implementation? If not, then it is a patent on the concept itself and not an implementation. Note: if there is more than one idea or concept being demonstrated, use the narrowest one.

    3) Is it obvious?
    4) Does it have prior-art?

    Let me give you two examples:
    1) Apple's slide to unlock patent. 1) Would an expert programmer be able to implement Apple's patent with no other information than what is in the patent documents? The patent is very specific on what is going on and so I would say it is a good example of a patent that passes this test. 2) Is is possible to unlock a device using physical contact to a touchscreen without violating Apple's patent? This one is difficult. Apple's patent covers any user interaction with a widget and continuous movement from on place on the screen to another for the purposes of unlocking the device. That is pretty broad, although if the graphical widget did not move across the screen, but instead changed colors, prompting you to drag your finger to another spot on the screen to unlock, I think it would be safely clear of Apples patent. So, Apple's patent probably clears this test. 3) Is it obvious? This is where Apple's patent fails in my mind. Using the movement of widgets to change state is not new, Apple's patent is a logical and obvious extension of it. 4) Is there prior art? In striking down this patent in the Netherlands last year, the Dutch court offered the2004 Neonode N1m as prior art.

    2) Microsoft "Virtual Entertainment" patent. 1) Microsoft fails right out of the gate on this one. There are no specs detailing how this would work. If I asked 100 experts to implement this patent, I would probably get 100 different implementations.

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