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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.

    • by tqk (413719)

      The patent was nothing new, there was plenty of prior art. They got lucky with a silly examiner, that's all.

      There's that, and then there's the bit that the whole patent system is a gov't granted monopoly hack intended to skew the workings of the free market. In programmer terms, it's as bad as a goto. There are lots of ways to do what that intends to do without doing it in such an ugly way.

      Plenty of vibrant industries don't rely on the patent system at all (eg. the fashion industry). The patent system enriches lawyers, full stop. It doesn't "promote the sciences and useful arts" at all, and seeing how caprici

      • 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.
  • Its obvious (Score:2, Informative)

    by Anonymous Coward

    Patents are not supposed to be "obivious to someone skilled in the art".

    • 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.

      • Such as a subjective metric can be made rigorous in the process of patent examination. How many silly patents would be tossed off once a couple guys had the chance of doing a clean room implementation given three days?
        That would reduce the number of patents, making the application a lil costlier. Bad for the applicant, good for the society. We don't need 2 million patents, we need 200 of them that are useful and that can be reimplemented once the terms expire. That does not happen now, because patents are j

    • 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: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.

  • by mehrotra.akash (1539473) on Sunday February 12, 2012 @11:36AM (#39011061)
    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
    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
    • by ceoyoyo (59147)

      Difficult? Your example is clearly invalid due to rior art.

    • by dotbot (2030980)

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

      Unless they're converting scrap gold into gold... which is about the level of sillyness we're seeing with software-related patents.

      Patents should be a good thing. The problem seems to be technical ignorance and lack of independence in the awarding process.

    • by tqk (413719)

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

      i) Why?

      ii) [Tangentially] If someone can convert scrap metal to gold, what the hell does he need a patent for? He's already in a better position than King Midas.

    • by geoskd (321194) on Sunday February 12, 2012 @01:12PM (#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

    • 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.

  • by evanbd (210358) on Sunday February 12, 2012 @11:36AM (#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.

    • by Qzukk (229616)

      Moreover, "process" patents are almost always about "using X (that someone else invented) do Y (which X was designed to do)". If you invent the screwdriver, should I really be allowed to patent of using your screwdriver to turn screws?

      • 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 jpapon (1877296)

          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

          I'm not saying I like software patents, but I fail to see how a process that involves complicated chemistry is any less "math" than software.

          It seems that they're both simply algorithms. One deals with how you control chemicals, the other with how you control electrons.

          I guess all I'm really asking is how you can justify process patents, but not software patents? Are you saying that software is not a process?

          • by betterunixthanunix (980855) on Sunday February 12, 2012 @12:37PM (#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 jpapon (1877296)

              I draw the line at abstraction -- something which is completely abstract should be beyond the reach of the patent system

              Fine, but I would argue that software processes are no more abstract than chemical processes. Again, one deals with performing certain actions on chemicals in a certain way, while the other deals with performing certain actions on electrons in a certain way. If software is math, then so is a chemical process.

              Software controls how matter should be controlled, just as a chemical process does. Just because that matter is much smaller doesn't change the fact that something physical is actually occurring.

              So

              • Except that software does not need to be implemented with electricity. You could run software using a complicated mechanical computer. You could run software using pen and paper. For many patented algorithms, pen-and-paper work is not even infeasible, just slower than using a computer.

                Additionally, what you are interested in with software is not the electrons; you do not save electrons somewhere to reuse them later. The results of a computation are just as useful if they are printed, output as punche
              • by oxdas (2447598) on Sunday February 12, 2012 @05:14PM (#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.

          • I'm not saying I like software patents, but I fail to see how a process that involves complicated chemistry is any less "math" than software.

            Chemistry is not math. Chemistry is described by math. There is no set of equations or software program that will actually cause crude oil to become gasoline.

            It seems that they're both simply algorithms. One deals with how you control chemicals, the other with how you control electrons.

            By this logic you can patent a work of fiction as a process of arranging letters on a printing press plate.

            The problem is that software is purely abstract. Nothing stops you from having a power source that can supply five times as much energy as the sun, or a gear with a hundred million teeth, or a totally frictionless surface. There is nothing useful

      • by cgenman (325138)

        The obviousness criteria should be a lot more broadly applied than it currently is. For one, while copyrights allow for similar or identical expressions developed in parallel, patents do not. If you realize that someone can file their taxes * on the internet *, and I realize that someone can file their taxes * on the internet *, it's a first-to-file-take-all situation. If we allowed for independent / clean room developments, the water might be a bit murkier but at least the indefensible patents wouldn't

      • by drinkypoo (153816)

        Patents are intended to protect inventions. A device that implements a business method should be patentable, but a process using it shouldn't. Otherwise you'd end up with a patent on using RFID for inventory control, et cetera.

    • by Trevin (570491)

      I've read evidence that industrial patents do not promote innovation, but hinder it instead. The most effective tools for profiting from either a product or a process are secrecy, complementary manufacturing, and market lead time. (Boldrin & Levine, [2008], "Against Intellectual Monopoly")

    • Re: (Score:3, Insightful)

      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 Asic Eng (193332)

      There is very little evidence that software patents do so

      I work in a department which files about 50 patents/year. We get a lot of pressure to do so, I've filed some myself, too.

      The curious thing is: we don't read patents unless we are checking for prior art. I have the distinct impression that we are not unusual in this respect - from an engineers point of view, patents are write-only. They can't promote innovation, because engineers don't hear about them.

      • by jackbird (721605)

        That's because 'willful' infringement of a patent carries a legal penalty of triple damages. This creates a perverse incentive for nobody to ever do a patent search with regard to software.

  • Crypto Patents (Score:5, Interesting)

    by betterunixthanunix (980855) on Sunday February 12, 2012 @11:39AM (#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:Crypto Patents (Score:5, Insightful)

      by TheSpoom (715771) <slashdot&uberm00,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.

    • by engun (1234934)
      Interesting points about crypto and patenting mathematics.

      But what is your take on patenting software in general? What is the difference between an algorithm and an industrial process? Aren't they both "recipes"? If so, should both be patentable? or neither?

      Following from that, why is patenting beneficial for industrial processes but not for software?

      I'm not really advocating patents nor renouncing them, just trying to get a better idea.
      • 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.

      • I think the key difference between software and industrial processes is that software operates only on abstract data, while industrial processes operate on actual material. I cannot write a computer program that produces plastic, no matter how fancy the program is; the closest I can come is writing a program that computes how plastic could be produced using some machine or industrial process.

        The dividing line is the abstract nature of software, which is itself just an extension of the abstract nature of
  • by sgt scrub (869860) <saintiumNO@SPAMyahoo.com> on Sunday February 12, 2012 @11:53AM (#39011171)

    He said "actual creators".

  • 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.
    • by TheSpoom (715771)

      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.

      Pedantic, but I've always wondered why that phrase was necessary. In a contract with a severance clause (like every EULA ever), if the exclusion isn't legal, it just gets severed from the contract and the rest remains in full force. So why specifically mention it?

      • I'm talking about Canada here, so it may be different elsewhere: If a contract is found to be overly biased to one side or includes any pieces not allowed by law, the ENTIRE contract can be deemed invalid in court, not just the offending part. By adding that simply line, they can say "that part of the contract doesn't apply to you" and avoid having the contract thrown out in court.

        IANAL, but the "all or nothing" part was explained to me in a college law class.
      • by Gorobei (127755)

        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.

        Pedantic, but I've always wondered why that phrase was necessary. In a contract with a severance clause (like every EULA ever), if the exclusion isn't legal, it just gets severed from the contract and the rest remains in full force. So why specifically mention it?

        Two possible reasons:
        1. Even with severability, there is the question of how much of the contract remains in force. This clause tries to define the portion of the contract that will be severed.
        2. Even with a severance clause, you may not have a severable contract. The judge may just decide it's not severable: a contract is between two people, it has no
        power to tell the courts what legal reasoning they must apply in a dispute.

    • by Ash-Fox (726320)

      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.

      You're making an assumption that you can have a copyright over legal texts and thus can't reuse it. Guess what...

    • by Nerdfest (867930)

      The added bonus is that in the case of software patents (and this analogy) it doesn't even matter if you some up with a better, more readable, more concise way to state this, you're still infringing. Innovation indeed.

  • Etymological series: Throw it out of the window > Defenetre > Defence

    Hence: Throw the process patents out of the window.

  • by wisty (1335733) on Sunday February 12, 2012 @11:59AM (#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).

    • Actually no. It's like posting a bunch of recipes in post-it form on the community bullitin board, where anyone *can* find them, but won't unless they look. Then going around 10 years later and demanding money from anyone making those types of cookies, whether they evere even saw your post-its or not.

      The summary contains a HUGE oversight.

      why it would be A-OK for dozens of already megarich corporations to get even richer adopting technology they did not invent

      Just because someone else invented something before you does NOT mean you did not ALSO invent it. His reasoning only makes sense if everyone already knew it had been inv

      • Why is there always SOMEONE here who sees a good analogy and thinks they can make it better - and in so doing turns it into a convoluted mess?

        Person A: X is like Y when Z.
        Person B: No, actually, X is like A when Y but also Z.

        (And yes, I fully expect- in keeping with slashdot tradition - sometime to pipe up and tell me about Person C who thinks X is like B when A but not Y and also Z but not Z1. )

    • by tqk (413719)

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

      Guilty. :-(

      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).

      There are a lot of parallels that can be drawn between the way gov't works (patent system) and how the mafia works (protection rackets). It's always surprised me that people think they are entirely unrelated processes. It all comes down to how good/believable is your PR.

  • I know people like to make a distinction between physical and non-physical goods, but I'm less and less impressed by them. Potash is just stuff in the ground. It's almost as free as software. Yet just like information it takes work to organize it, refine it and bring it to market. So I increasingly don't see a difference. Oh, I know the old saw that you can make infinite copies of a digital file, but that ignores how expensive it can be to produce the first copy. We need to find a good way of protecting th
    • by JWW (79176)

      Patent trolls don't make a first copy. They sketch out a vague diagram and then say that anyone doom what they diagramed needs to pay.

      I would love to see software patent suits require a demo of functioning software. But I have a suspicion that that woul make it too easy for juries to say "these aren't the same things."

      Heck if I had my way anyone entering a courtroom for a software parent suit without being able to present a working software example of their parent should be shot.

    • by metacell (523607)

      Then people should be paid to refine and organise potash and bring it to the market, just like people should be paid to refine and organise existing algorithms and adapt them to a specific customer's needs.

      Patents prevent people from doing that. The person who digs up potash from the ground can be sued if he does it in a way that someone else thought of first, and the programmer who applies algorithms can be sued if someone else came up with the same algorithm first. Both are prevented from profiting from t

    • by tqk (413719)

      Oh, I know the old saw that you can make infinite copies of a digital file, but that ignores how expensive it can be to produce the first copy. We need to find a good way of protecting the folks who invest in that first copy. If that means patents, I think that's fine.

      ITYM copyrights, not patents.

      I think I'm okay with Paul McCartney and his designated distribution arm being the only ones legally allowed to sell copies of Wings' music, because that (in theory) ensures he gets his royalty.

      I'm not okay with Apple suing restaurants in Germany for using the generic word "apple" in their name. That's just lawyers abusing the system for no reason other than their greed.

    • Imagine if this was patented:

      https://en.wikipedia.org/wiki/Quadratic_formula [wikipedia.org]

      What differentiates a software patent from a math patent? Well, nothing, as it turns out:

      https://en.wikipedia.org/wiki/Church-turing_thesis [wikipedia.org]

      Moreover, software patents have caused substantial harm to the state of computer security:

      http://www.wired.com/techbiz/media/news/2000/09/38635 [wired.com]

      ...and they continue to do so:

      https://en.wikipedia.org/wiki/ECC_patents [wikipedia.org]

      We need to find a good way of protecting the folks who invest in that first copy. If that means patents, I think that's fine.

      Let's try avoid reliance on this:

      https://en.wikipedia. [wikipedia.org]

  • Unfortunately, Mr Stanganelli won't get to see this, as I can't post it as a comment on his article because the registration procedure is four screens long and wants every last detail of my domestic and financial circumstances.

    The three technologies he cites, online video, image rotation, and search bar autocomplete, were all well in use long before the so-called "inventors" "invented" them, so I cannot but agree with the judgement that the patent is invalid.

    It sounds as if Mr Stanganelli is simply suffer

  • 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.

  • Any discussion about patents must start by stating the fact that most patent infringements occur when its idea is reinvented, not stolen. So when you say that patents benefit the inventor, you must clarify that each patent only benefits one inventor, who was the first to register a particular idea. Thus we can rephrase the patent argument as: should people be rewarded for being the first to think of something?

  • 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

  • All patents and copyrights cause harm to the economy and to progress, it is absolutely wrong to have government protect anybody's business model, regardless of what it is, and this includes special subsidy of the enforcement, court and penal systems.

  • In theory a person has to build whatever they are patenting, but process patents are much too broad, not being tied to an actual machine. Patents in general are no longer useful to society, and simply allow the lawyers to get rich at everyone else's expense. Patents made sense back when the time it took to reverse engineer a product was trivial compared to the time it took to design it in the first place. In an age when the time to design is less than the time to steal, patents serve no valuable purpose, an
  • 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.

  • At a town hall meeting hosted by Senator Ben Cardin (D-Md), I stood up and complained that the patent system, which is supposed to help software developers, is instead a sword over our heads. I then gave two examples of recent ridiculous patents.

    He replied that he is ( or was ) on the Commerce Committee and is aware of the problem. After the obligatory talk on the need to protect intellectual property he showed an awareness and sympathy to the issue. His last line was that when you want to use "1+ 1 = 2"

    • Tell him programming is just a form of math-- it is quite likely any CS professor he asks that will confirm that CS is mathematical-- since they still hold that math can't be patented.

      Me, I find it odd that simple math turned into a million lines of extremely specific steps is patented broadly while some difficult solution that took 100s of years to discover that is only a few lines and is already very broad (like the currently patents given) can not be patented. Either both or neither can be.

      • it is quite likely any CS professor he asks that will confirm that CS is mathematical

        Only theoreticians would say that; there are plenty of CS professors who view software development as a kind of engineering work, and who would say that software is related to math in the same way that circuits are -- mathematical foundations, but with something more. You and I both disagree, but unfortunately the US government tends to favor any argument that presents opportunities for businesses to open new revenue streams (regardless of the cost to society).

  • '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 ..."

    The fundamental problem with this guy's argument, and with patents in general, is that aforementioned megarich corporations DID invent this technology... regardless of whether the Eolas patent was valid by today's standards of what is patentable or not, Google, Yahoo and others sure as hell D

  • The solution is simple. Only allow the patenting of IMPLEMENTATIONS, not ALGORITHMS.

    Algorithms are DISCOVERED, not invented. They have always existed, the techniques by which computing gets done.

    Can you imagine the shitload of trouble we'd all be in if some of the authors of the great programming texts and guides had PATENTED their algorithms?

    *shudder*

  • I'm particularly upset about the rise of "X, but with computers/internet/iWindows" patents.

    Clearly, if something is done on paper, it is possible to do the same digitally, where is the innovation in implementing it?

  • by Ice Station Zebra (18124) on Sunday February 12, 2012 @01:50PM (#39011963) Homepage Journal

    In the 1990s, three University of California scientists allegedly developed and patented features that have become integral parts of what we today know as the "Interactive Web" -- including online video, image rotation, and search bar autocomplete. Eolas Technologies (a company owned by one of the scientists) and the University of California are suing several major companies -- including Internet heavies like Adobe, Amazon, GoDaddy, Google, and Yahoo, and retailers like Staples and JC Penney -- that allegedly employ these patented features.

    Please show me where these "scientists" actually invented something. Online video? Ever hear of something called TV. Image rotation? Really, isn't that just an application of a matrix transformation. Search bar autocomplete? Isn't that just navigating some kind of tree like data structure and displaying the results. I just can't see the non-trivial innovation in these examples, maybe if I had no clue about math or computers, sure, but there is nothing here remotely outside the norm.

    Maybe we need to rethink who we are labeling "scientists" in this day and age. Seems our standards are pretty low.

  • by EdwinFreed (1084059) on Sunday February 12, 2012 @02:02PM (#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 hey! (33014) on Sunday February 12, 2012 @02:28PM (#39012159) Homepage Journal

    He posits a hypothetical example that in the terms described, no reasonable person would disagree with:

    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.

    Sure, because he's just told us the big corporations *stole* something. If we start from that characterization of what happened we'd have to agree, because stealing *by definition* is wrong. We never call rightful and proper uses of things "stealing". He then goes on to make a completely unsubstantiated claim:

    In the 1990s, three University of California scientists allegedly developed and patented features that have become integral parts of what we today know as the "Interactive Web" -- including online video, image rotation, and search bar autocomplete.

    What evidence does he present that these scientists "invented" anything? None. His characterization of this event is buttressed only by an ad hominem attack on people who disagree with him:

    Technology pundits come from Bizarro Technology Punditry World, where up is down, black is white, and Google+ is the best thing ever.

    So we aren't supposed to agree with *those* people on patents because he happens to think they're weird? Because they don't like the same things as us? He goes on to say, without any apparent sense of irony that these "bizarro technology pundits" are:

    ...ever fond of villainizing anyone [who disagrees with them on Internet patents]...

    Next he gives us a spectacular display of weasel wording:

    To be clear, I am not commenting on the actual results of the case. Not having seen all of the evidence or been in the courtroom, I do not attempt to second-guess the jury; they may well have made the legally correct decision.

    So if he's not arguing about the "actual results" in this case, just what the heck is he talking about? We're supposed to feel pity toward the plaintiff,outrage at the defendants, and contempt toward the defendants' supporters -- on what basis? On the basis of something that *might* have happened but didn't? Because he thinks the defendants are greedy and rich, and their supporters are "bizarro pundits" who like Google+?

    He's calibrated his imprecision very precisely here. He says has "not seen all the evidence", but does *not* tell us what evidence he *has* seen, or whether he has seen any evidence at all. This makes him hard to argue with -- we don't know which of his claims apply to what actually happened, and which apply to a purely hypothetical world of his own imagining.

    Apparently he feels he can stand in the safety of that hypothetical world and lob his opinions at people in the real world :

    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.

    Note how he *predicates* his indictment of the defendants (aka the "megarich corporations") *on something that did not happen* ("had the jury ..."). I started counting the logical fallacies in this statement and gave up when I hit six (straw man, begging the question, appeal to pity, appeal to spite, appeal to authority, and two different kinds of red herring).

    Frankly, the reasoning in the article is so weak the only value I can see in discussing it is as an example of deceptive and faulty argumentation. I'd be interested in hearing a more robust argument, say from someone who wants to argue a natural property right to ideas.

  • by symbolset (646467) * on Sunday February 12, 2012 @03:02PM (#39012393) Homepage Journal

    I'm going to go with "argumentum ad verecundiam" here - I know... bad form.

    Here's Professor Emeritus Knuth's Letter to the patent office [progfree.org].

    Here are a collection of quotes with references [ffii.org].

    If you don't know who Donald Knuth [wikipedia.org] is, you should find out before trying to participate in this discussion. It seems unlikely to me there exists a software patent that isn't derivative of his work.

    And since I'm a Groklaw fan, here's a Groklaw article [groklaw.net] about the good professor's views on the subject.

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