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Federal Patents Judge Thinks Software Patents Are Good 171

Posted by timothy
from the everything's-a-nail dept.
New submitter Drishmung writes "Retired Judge Paul Michel, who served on the Federal Circuit 1988-2010 — the court that opened the floodgates for software patents with a series of permissive decisions during the 1990s — thinks software patents are good. Yes, the patent system is flawed, but that means it should be fixed. Ars Technica have a thoughtful interview with him. Ars' take: 'If you care most about promoting innovation, offering carve-outs from the patent system to certain industries and technologies looks like a pragmatic solution to a serious problem. If you're emotionally invested in the success of patent law as such, then allowing certain industries to opt out looks like an admission of failure and a horrible hack.'"
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Federal Patents Judge Thinks Software Patents Are Good

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  • In other news (Score:5, Insightful)

    by GoodNewsJimDotCom (2244874) on Monday May 14, 2012 @06:28AM (#39992961)
    Drug enforcement agents think the war on drugs is a really good thing.
    • Exactly (Score:4, Insightful)

      by Kupfernigk (1190345) on Monday May 14, 2012 @06:52AM (#39993039)
      I think, given the number of lawyers involved and the kind of income they can make from corporates, that for "emotionally invested" read "benefiting financially". There are a few judges who, once they have a permanent appointment, suddenly start telling litigants to grow up and keep the courts out of it, but the majority are looking over their shoulders at their former colleagues and their children.
      • Re:Exactly (Score:4, Insightful)

        by demonlapin (527802) on Monday May 14, 2012 @07:57AM (#39993299) Homepage Journal
        It's probably much more emotional than financial. The small percentage of lawyers who are really successful are unlikely to give up very lucrative practice to become judges. But every judge has the experience of being a lawyer before he's a judge, and will tend to bias decisions in such a way as to protect the prerogatives of the legal profession above all others. (There's even a whole book [amazon.com] about this, though I've not read it.)
      • Re:Exactly (Score:4, Interesting)

        by CastrTroy (595695) on Monday May 14, 2012 @08:57AM (#39993635) Homepage
        While I think that there are many lawyers profiting from software patents, I'm not sure that any corporation (except law firms, which are usually not corporations, usually limited liability partnerships) would claim to be "benefiting financially" from the current state of software patents. Perhaps a couple patent troll "corporations", but nobody who is seriously involved in the development of software products can claim that software patents are a good thing. At the end of the day, all the legal services they have to pay for to defend and file their patents are just a really big cost center. It stifles innovation, and it stifles change to have all these patents floating around. I'm not really against software patents in principle, but in practice, they just don't work. It doesn't seem that there is enough expertise in the patent office to ensure that bad ones don't slip through (although the same could probably be said for most patentable things, since all the really simple stuff has been patented, and the only stuff left to patent is quite obtuse stuff, which, although it may already be in use in standard industry, I doubt many patent clerks would be able to determine if something was truly novel, without spending a lifetime in the field). Some major changes would have to be made to the patent system for software patents to work at all. Probably better to just drop them all together until we find a model for patenting software that actually makes sense.
        • You appear to have responded to my post without reading it. I suggested that it is the lawyers who benefit financially, and I didn't suggest anywhere that "law firms" are incorporated.
        • Re:Exactly (Score:5, Informative)

          by Grond (15515) on Monday May 14, 2012 @01:14PM (#39996573) Homepage

          nobody who is seriously involved in the development of software products can claim that software patents are a good thing

          Would you consider Steve Jobs "seriously involved in the development of software products?" When he announced the original iPhone, he noted "and boy have we patented it." [youtube.com] It's right there in the presentation as a bullet point, alongside "works like magic" and "no stylus." Later he pointed out that "We filed for over 200 patents for all the inventions in iPhone and we intend to protect them." [youtube.com]

        • but nobody who is seriously involved in the development of software products can claim that software patents are a good thing.

          It depends on what you mean by "development" - and also "good thing". Certainly, no software developers I know of love software patents. But the company's they are employed by do.

          It's like saying that no soldier can claim guns are a good thing - after all, they've killed many soldiers on both sides of every conflict they've been involved in. Guns aren't made for soldiers. They're made for the politicians who use those soldiers to exert their influence on other parties. Same for software patents. They don't

      • by Anonymous Coward on Monday May 14, 2012 @11:31AM (#39995287)

        IANAL but I am a programmer. Judge Paul Michel fails to notice that he is not a software developer, and lacks perspective on the software industry as a whole. Here are four reasons to reject software patents:

        Modern computers are general purpose machines - hence BASIC (Beginners ALL-PURPOSE Symbolic Instructional code). All programs are therefore written within the specifications of the hardware designer. This makes ALL software predictable by those versed in programming and not patentable in the first place.

        Since all software runs on hardware that only understands the values of 0 and 1, it is all reducible to math. Anyone who has taken a digital logic class can attest to this. What you see on the screen is a representation of that math. Dump the contents of the RAM in binary if you want to prove it to yourself. Math is discovered, and therefore not patentable.

        Software patents typically contain no code. The "Inventor" fails to disclose their invention, which should justify the patent being thrown out for lack of documentation. The patent holders, which are increasingly attorneys, are typically unable to actually implement their own patents. This practice discourages innovation.

        Software patents typically make no sense to programmers. If a programmer can not understand the patent, then it does not describe a program. On that basis it should be thrown out.

        We programmers are sick of being harassed by patent attorneys. They are leeches on our business, and have served to stifle innovation in the industry. It is time to fight back. We should earn triple damages if we successfully defend a suit based on bogus patent claims. For instance, Google should be paid $3 billion by Oracle ($1 billion *3) if they win their case. That would put the trolls back under their bridges.

        http://www.ted.com/talks/drew_curtis_how_i_beat_a_patent_troll.html

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

        • I really don't get the math argument. All physics is also reducible to math, and when you look at things like wave functions, it seems that we're at the point where we are close to saying that universe itself is basically just math. Reality itself is a "general-purpose machine"!

          Either way, physics is also discovered, not invented - which also goes for applied physics, i.e. engineering. And, most certainly, you can take pretty much any physical invention, and model it on a computer - at which point it really

          • I really don't get the math argument. All physics is also reducible to math, and when you look at things like wave functions, it seems that we're at the point where we are close to saying that universe itself is basically just math. Reality itself is a "general-purpose machine"!

            Either way, physics is also discovered, not invented - which also goes for applied physics, i.e. engineering. And, most certainly, you can take pretty much any physical invention, and model it on a computer - at which point it really is pure math.

            Why, then, are hardware patents okay, but software patents are not? (in general, not the typical patents of today like "one click" or swipe-to-unlock).

            There was a case recently that made it quite explicit that you can not patent a natural law, only an application (machine) that uses the laws of physics in a specific way.

        • There are great reasons to dislike software patents. These aren't.

          Modern computers are general purpose machines - hence BASIC (Beginners ALL-PURPOSE Symbolic Instructional code). All programs are therefore written within the specifications of the hardware designer. This makes ALL software predictable by those versed in programming and not patentable in the first place.

          No more than all English works are 'predictable', since they use the same alphabet.

          Just because the building blocks are a limited set doesn't

        • by ignavus (213578)

          Since all software runs on hardware that only understands the values of 0 and 1, it is all reducible to math. Anyone who has taken a digital logic class can attest to this. What you see on the screen is a representation of that math. Dump the contents of the RAM in binary if you want to prove it to yourself. Math is discovered, and therefore not patentable.

          Numbers are not necessarily "math". Numbers can be arbitrary names ("the Class 44 Locomotive"). Numbers can be arbitrary values in codes - such as the ASCII values of alphanumeric and punctuation characters (versus EBCDIC, etc). You can do some arithmetic on ASCII values (e.g. the ASCII code of a capital letter, plus 32, gives you the ASCII code of its matching lower case letter ... by convention). But (say) using division with ASCII codes is meaningless. Numbers can also be instructions in a machine langua

    • Re:In other news (Score:5, Informative)

      by Anonymous Coward on Monday May 14, 2012 @07:05AM (#39993083)

      Slashdot headline: "Federal Patents Judge Thinks Software Patents Are Good"
      Ars headline: "Top judge: ditching software patents a "bad solution"

      If you bother to read the article, he says that simply throwing out the patent system is not a good idea. He also says that software patents are rife with garbage which needs cleaned out, and that the entire system from top to bottom needs to be overhauled.

      But I guess it's easier to post a knee-jerk response and get a +5 Insightful than it is to read the article.

      • Re: (Score:2, Funny)

        by Anonymous Coward

        Whereas actually reading the article got you +1... what has Slashdot become :(

      • Re: (Score:2, Insightful)

        by arth1 (260657)

        But I guess it's easier to post a knee-jerk response and get a +5 Insightful than it is to read the article.

        No, easiest is to post an ad hominem as Anonymous Coward.

        If the submission title and text is in error, don't blame the person who made a comment based on it. Blame the submitter and slashdot editor who let the tripe pass.

      • by shentino (1139071)

        I guess slashdot moderators and patent law both reward bad behavior then.

        When you're in a world of greedy humans all looking out for "number one", incentive means everything.

      • And who is going to overhaul the system and eliminate the garbage? I don't know about the USA, but in this country whenever a "system" needs "overhauling", all of a sudden the Government seems to employ a lot of lawyers on long contracts. Whereas reverting to a state in which neither algorithms nor their implementation in software could be patented would have the reverse effect.
      • Re: (Score:3, Insightful)

        by jedidiah (1196)

        He also says that it's a "bad idea" to dump certain types of patents. This is despite the fact that such patents are clearly harmful and are themselves "recent inventions".

        I read the article too.

        I think the judge is an idiot.

        When production blows up in your face, one of the first things you consider doing is rolling back recent changes.

        Clearly this authority figure is too invested in the system and can't bare to see the scope of his power diminished. He's like any other beaurocrat.

        • Re: (Score:3, Insightful)

          by jmactacular (1755734)

          Well, he doesn't have power any longer, he's retired.

          It sounds like he isn't familiar with, or just doesn't care about, how bad it has become. His view must be limited to his world of the courtroom, instead of everyone else out in the real world being extorted and/or shut down, stifling innovation before it even makes it into the courtroom.

          But mostly, it sounds like he's trying to save face for a flawed system, because he's so invested in it, rather than being interested in solving the problem. Perhaps ev

      • Re: (Score:3, Interesting)

        by MobyDisk (75490)

        1. Read Slashdot headline
        2. Become outraged
        3. Furiously read comments
        4. See Insightful post and realize summary is inflammatory
        5. Tag story with "badsummary"
        6. Move on.

        I need some more people to do #5 with me. Then the process will become:
        1. Read Slashdot headline
        2. See "badsummary" tag
        3. Move on.

    • Re:Bugs are good (Score:5, Interesting)

      by xonicx (1009245) on Monday May 14, 2012 @07:06AM (#39993085)
      Bugs are good!
      -- software engineer paid for maintenance
    • Kinda misses his point. It seems to be, "It's bad policy to just exempt certain industries from the patent system. If the system is broken then fix it; exempting industries is a band-aid at best." If that's true, then the only consistent solutions are "no patents at all" or "no industry exemptions, but reform the system so that it's functional again."

      Alternately, you might give some reasoning for why software patents are "special" and deserve exemption where other industries don't.
      • Re:In other news (Score:4, Insightful)

        by jedidiah (1196) on Monday May 14, 2012 @10:15AM (#39994287) Homepage

        You make it sound like we've always had software patents.

        This isn't about "software being special". This is about new forms of patent being created essentially out of thin air and contrary to previously adjudicated precedents.

        Patents exist to serve a public policy objective. If they are harmful, then they need to go. The system does not have an inherent justification. It has no right to exist. You don't have a natural right to a patent.

        The "null hypothesis" here is that NO patents deserve to exist. Any class of patents needs to justify itself or be abolished.

        Software patents are a recent invention. It is THAT change to the status quo that needs to be justified.

        • Re:In other news (Score:5, Interesting)

          by scamper_22 (1073470) on Monday May 14, 2012 @11:52AM (#39995551)

          That's pretty dangerous ground you're operating on.

          I think if you value a society based on the rule of law where every person/industry... is treated equally by law, the existence of patents in other industries should carry over to the software industry. You'd have to prove somehow that software is radically different than the rest of the industries.

          The same goes for the other ways in which government operations (safety, quality, national security...). They all extend naturally to new industries.

          As to justify itself... well... that's pretty easy to do. Pretty much any law can be justified. It's just a matter of who gets to judge the justification.

          For example, I happen to think the startup culture is actually bad for long term scientific progress. It prevents science from being seen as a long term career, so who is going to invest in such a field? I think the period we're in right now is we're 'burning' through the last generation of people brought up in the more traditional company environment. It's one of the reasons most grad students in the sciences in the US are not US citizens. I don't believe it is because US citizens are not smart enough... it is that they rightfully see the field as not one worth such a long term investment. For the talent you have, you might as well be a doctor, nurse, teacher, finance person...

          Now that's just my view and not the point of this post... I'm sure people have different views. I'd venture to say most would disagree with me... but what it shows is the amount of discretion in terms of justification. And the more discretion you have, the lower the rule of law is.

          Given my experience in industry... there is little that differs from software. People who claim software patents are radically different... are generally people who just haven't seen chemical or hardware patents. They're just as obvious... as anything you'd complain about in the software realm. The only difference I'd say is that the companies involved in those other industries are used to the whole patent and licensing system. Partly because they are always used to charging for their products (they have to... they're made up of physical parts)... so the licensing is easily built into the cost. They're also more mature fields so there's less activity going on.

          • Every industry is not treated the same by the law of any reasonably developped country. Why did you equate that with person equality?

            • The goal of the law is always to treat each industry the same. I don't see a developed country where this is not the goal.

              There are exceptions and people rightfully make a complaint out of it. Whether it is agricultural subsidies or military spending... Sometimes it just justified... other times not so much.

              The more it ventures into treating sector differently, the less your society is based on the rule of law.

              That's the only point. There's a whole class of people who don't believe in the rule of law, b

              • Different industries pay different taxes, have specific regulations, etc. Only some kinds of professionals can work on some industries, while on others the initiative is free for everybody, some industries have minimum requirements for investiment, testing, verification, insurance, and lots of other things.

                Any country would be crazy to make the same set of regulations apply for the neighboring pub, a nuclear power plant and airplane manufacturers.

          • Please use fewer ellipses. I hate to suggest that perhaps you edit your comments, but given that your remarks here will be durable beyond anyone's ken, you may want to refrain from overstating the obvious or trivial.

            Beyond the standard of obviousness, there are differences between software patents and most other forms of patent which you seem to be completely unaware of. This AC has a good summary. [slashdot.org] To this list we may add that patents are meant to cover implementations, not methods. You're supposed to be ab

          • "I think if you value a society based on the rule of law where every person/industry... is treated equally by law, the existence of patents in other industries should carry over to the software industry."

            There is a huge problem with this statement, copyrights, patents - are monopolies. They were invented in theory for projects that require serious long term investment, but we've seen the actual the results of more then a century of their existence. I'd say for all the benefits that you proclaim exist are

            • You can have a problem with patents in general. I have no issue there. Abolish all patents. That would treat all industries the same.

              Or prove somehow that the software industry is very unique... and then you can create an exception for it.

              For example... the right to bare arms extends to all new weapons in so far as the rule of law should be concerned.

              This doesn't mean that you can't create exceptions. A nuclear bomb is significantly different than a gun given the potential damage. You can create a law

          • by Fned (43219)

            You'd have to prove somehow that software is radically different than the rest of the industries.

            You mean all the rest of those industries where the actual physical product has, in addition to development costs, extremely significant upfront tooling costs and manufacturing overhead, which happen to the specific costs that patent law was created to protect investment in?

            Man, I'm gonna have to think hard on this one. Let me get my thinking cap on.

          • You'd have to prove somehow that software is radically different than the rest of the industries.

            Software are protected by copyright. Adding patent on the top of that does not give aditionnal protection to people who innovate, but it allows actors with deep pockets to expropriate them.

      • Re: (Score:3, Interesting)

        by sir-gold (949031)

        From my understanding of software patents vs. real mechanical patents: a software patent allows you to patent the concept of an action, rather than the action itself. Lets use the standard example of the cotton gin. If the machine had been covered under a software patent you would be able to patent the entire IDEA of ginning cotton (a device that inputs raw user cotton plants and outputs refined cotton) and not just the particular method of getting that refined cotton (which is what was really patented, all

  • by Anonymous Coward on Monday May 14, 2012 @06:29AM (#39992965)

    "If you're emotionally invested in the success of patent law as such" - that's the problem. You should never be emotionally invested in a cedrtain law. You may be emotionally invested in a goal and thus support a law which you think helps with that goal (and revise that support if it turns out that the law doesn't help with that goal). However as soon as you are emotionally invested with the law as such, you are not any more objective about it.

    • I'm not sure anyone affected negatively by software patents could not have an emotional response to this issue.

      'If you care most about promoting innovation, offering carve-outs from the patent system to certain industries and technologies looks like a pragmatic solution to a serious problem.'

      These special considerations for industries - such as software patents - may be viewed as a solution for the problems with the patent system but they are not a pragmatic solution to the real problems caused by software patents. If you want a select few to innovate, such as those who are rich enough to defend their software patents, then you've got your wish. If you want everyone in the software ind

    • There is no evidence that patents actually encourage innovation and with the current situation of patent war in technology, it looks like patents do a lot more harm than good.
  • by Alranor (472986) on Monday May 14, 2012 @06:34AM (#39992983)

    If you care most about promoting innovation, offering carve-outs from the patent system to certain industries and technologies looks like a pragmatic solution to a serious problem. If you're emotionally invested in the success of patent law as such, then allowing certain industries to opt out looks like an admission of failure and a horrible hack.'"

    Isn't that the actual, official, reason for having patent laws and protections in the first place?

    Surely being 'emotionally invested in the success of patent law' would require you to want it to achieve what it was meant to achieve?

    • by chrb (1083577) on Monday May 14, 2012 @07:10AM (#39993093)

      Surely being 'emotionally invested in the success of patent law' would require you to want it to achieve what it was meant to achieve?

      Michel's argument is a familiar and persuasive one - if there are problems with the patent system, then those problems should be fixed, rather than exempting entire industries from its scope. Some might claim that it is an argument based on ideology rather than pragmatism, but that does not make it invalid. Why should electrical engineers be vulnerable to patent trolls, whilst software engineers aren't? Why should a program expressed in VHDL and uploaded to an FPGA be worthy of patent protection, whilst the same algorithm implemented in C and running on a CPU isn't? Why should engineers in every industry have to worry about patents, but software engineers be excused? There is the argument that software is just an expression of mathematical functions, which as an abstract concept is unpatentable. But isn't a CPU design also an expression of mathematical functions, that just happen to implement logic gates and other circuits?

      The pragmatic difference is that the barrier to entry for software programming is much, much lower. When a person can violate your patents with nothing more than a PC and a compiler, then there are potentially tens of thousands of people who will end up doing so. But the actual result is no different to that of other industries - the PC is to software what Star Trek 3D replicators would be to hardware - if we actually had 3D replicator technology, then people working in every industry would be living under the threat of patent trolls, and many of them would be calling for their industry to be exempted. So, why should software be treated as a special case?

      • by geoskd (321194) on Monday May 14, 2012 @07:16AM (#39993129)

        Why should a program expressed in VHDL and uploaded to an FPGA be worthy of patent protection, whilst the same algorithm implemented in C and running on a CPU isn't? Why should engineers in every industry have to worry about patents, but software engineers be excused?

        The right answer is: neither engineer needs patent protection to make viable, marketable products, and thus neither should have it.

        -=Geoskd

        • Re: (Score:3, Insightful)

          by Savage-Rabbit (308260)

          Why should a program expressed in VHDL and uploaded to an FPGA be worthy of patent protection, whilst the same algorithm implemented in C and running on a CPU isn't? Why should engineers in every industry have to worry about patents, but software engineers be excused?

          The right answer is: neither engineer needs patent protection to make viable, marketable products, and thus neither should have it.

          Ok, the patent system is broken. Let's fix that by abolishing the patent system! That will allow us to move on to the more onerous problem of fixing the problem of business monopolies by abolishing trade! And come to think of it police officers sometimes abuse their power, let's fix that by disbanding the police force! Or... perhaps, we should just fix what's wrong with these things? The engineer may not need patents to make viable marketable products but they sure help you to recoup the investment in time

          • The Patent system was put in place to protect innovators, it does not do this, abolishing it would leave trademarks and copyright, trade secrets, fraud etc to protect businesses ...

            The only people who are worried about losing patents are those who's business model is founded on them, these are mostly very large companies who could change if they were motivated to ....

            • by jedidiah (1196) on Monday May 14, 2012 @10:20AM (#39994341) Homepage

              The patent system is not meant to "protect innovators".

              This is a bad bit of pro-corporate rhetoric that sends everyone down a philosophical dead end. Patents exist to encourage disclosure of useful inventions so that everyone can use them.

              If something can be easily replicated by 10 companies in parallel, then the value of disclosing that information is miniscule. The harm caused by not allowing 9 out of 10 companies to independently move forward gravely outweighs the value of allowing the 10th company to claim ownership on something.

              The basic idea of what the patent system should be and how individual patents should be treated is wrong. If judges are perpetrating those fundementally wrongful ideas then perhaps the whole system needs to be scrapped.

              Sometimes, the patient can't be saved.

          • It is not that there are problems with the patent system. The problem is the patent system.

            Why is the patent system broken? Is it because we've botched it? Didn't execute? Or is it because the idea is fundamentally flawed? Monopolies are so bad that there has to be a lot in any deal for it to be worth our while to honor one. We don't get near enough in exchange for these monopolies our agents pledge us to keep. We run around playing whack-a-mole, to our own detriment because we'd be better off if w

      • by drinkypoo (153816)

        So, why should software be treated as a special case?

        Your own comment contains the answer: The pragmatic difference is that the barrier to entry for software programming is much, much lower.

      • Michel's argument is a familiar and persuasive one...

        It is a familiar one, but entirely unpersuasive. It fact, it not only borders on the absurd, it dives head first into ridiculousness territory. The relationship between patents and mathematics is unsalvageable, as the two are wholly incompatible.

        Why should a program expressed in VHDL and uploaded to an FPGA be worthy of patent protection, whilst the same algorithm implemented in C and running on a CPU isn't?

        Neither one should be patentable. The FPGA is a human creation, and should be patentable (under certain circumstances). The mathematics performed on the FPGA are products of nature, and therefore should not be patentable.

        Ever.

        The CPU is a human creation, and sho

      • by lordmage (124376)

        The pragmatic difference is that the barrier to entry for software programming is much, much lower. When a person can violate your patents with nothing more than a PC and a compiler, then there are potentially tens of thousands of people who will end up doing so. But the actual result is no different to that of other industries - the PC is to software what Star Trek 3D replicators would be to hardware - if we actually had 3D replicator technology, then people working in every industry would be living under the threat of patent trolls, and many of them would be calling for their industry to be exempted. So, why should software be treated as a special case?

        Ummm.,,. The difference is that with such ease people can also come up and implement the same idea without having others show it to you. Imagine a world where a bridge concept is patentable. Meaning: Cavemen walking around sees a river, pushes a tree over and walks to the other side... thats a patent violation. Instead of patenting How he was able to get the tree in position, how he was able to stabilize the tree, etc... the whole concept is patentable. Software ideas can be relatively implemented much

    • Rather than the "who did what" test while just assuming it promotes innovation then software patents might actually be viable. However promoting innovation is a higher threshhold then just "non-obvious". Also promoting innovation in software should mandate a shorter patent length. Anyone understand why DVDs are under patent until 2016??? A 20 year patent should pass the "holy cow!" test. A software algorithm for controlled fusion reactions. On the other hand If a reasonbly comptent programmer can replicate

      • It just just fail the "obvious to someone skilled in the art" test.

        If I go ask someone how to do the thing mentioned in the patent, and they give the same answer, the patent serves no purpose.

        The intent is for inventors to reveal how they did something in return for a temporary monopoly. (As opposed to keeping it secret and thus society losing the secret if something happens to the inventor.) If many others in the field could implement the same thing given the same problem, there's no need for the patent.

  • by trout007 (975317) on Monday May 14, 2012 @06:54AM (#39993047)

    Is this a suprise to anyone? Central planners always have an excuse for their failures and always insist they just need some reforms and tweaks to get it right. They insist the problem isn't that central planning cannot work it is just some little switch or dial needs adjusting. The fact is Central planning can never work. Free people following having the liberty to do what they want with their time and property will always work better. It won't always be successful but that is the point. The failures will simply run out of their own money. The central planners get to take everyone's money to keep funding their failures.

    • What you're saying is that overplanning will never work. Central planning can and will work, provided that central planning only designates targets, and leaves the method to the market to work out. That's more or less what happens in China right now, albeit with a stricter national control over the market itself too, and look at how they're doing: greatest economic growth of the globe for the nth year running, and they're in despair over the fact that the growth dropped to 8% last year, while every other ec

      • Patent law is not central planning but quite the opposite: it's how we allow innovators in a free market to profit from their innovation. Invent something, bring it to market and profit from it without competition for a legally specified period of time. And the beauty of it is that eventually the design goes off patent and everyone benefits from it's production in a free, competitive market. Take away patents and copyrights and nobody has incentive to innovate. Bigger, more established manufacturers si

        • by jedidiah (1196)

          > Patent law is not central planning but quite the opposite: it's how we allow innovators in a free market to profit from their innovation.

          Patent has nothing to do with that.

          What patents allow for is to claim ownership of something and then prevent anyone else from doing anything else vaguely similar.

          In their current form, it allows companies to stake claims on the current state of the art and suppress competitors. In it's current form, the patent system doesn't really encourage the disclosure of useful

          • "What patents allow for is to claim ownership of something and then prevent anyone else from doing anything else vaguely similar."

            Yes, so they can exclusively profit from it. Remember, this is a GOOD thing because innovators have incentive to innovate, even if only for a limited period of time. The key is "limited" because eventually they go into the public domain. Then it benefits everyone.

            The problem is that the patent office is not technologically sophisticated enough to evaluate patent apps for compl

            • by trout007 (975317)

              I'd argue the patent and copyright system cause a net harm to liberty and society. You made my point by saying that the patent office isn't technologically sophisticated enough to evaluate complex patents. That is always the problem with Central planning. People do things and come up with disruptive ideas the planners could never envision.

              We don't need patents or copyrights. They are similar to slavery. Someone else owns you and your real property and can tell you what to do with it because they are given

  • by chrismcb (983081) on Monday May 14, 2012 @07:12AM (#39993099) Homepage
    Software patents have two main problems.
    The biggest problem is, generally they aren't novel enough. Too many can be conceived by a general practioner of the art. And claiming XYZ can now be done on the internet, or on an IPad, or on 'fancy new device' doesn't make it novel enough.
    The other problem is ideas can't be patented. Yet that seems to be what most patents are. They won't show the code, so how do you know if you are infringing on the patent? There are multiple ways to solve a problem. Just because I got to the same end point doesn't mean I infringed on the patent.
    • The other problem is ideas can't be patented.

      Hmm, I've always thought that this was exactly the point of patents. So once you have them in laws, ideas can, in fact, be patented.

      • by gl4ss (559668) on Monday May 14, 2012 @07:48AM (#39993263) Homepage Journal

        The other problem is ideas can't be patented.

        Hmm, I've always thought that this was exactly the point of patents. So once you have them in laws, ideas can, in fact, be patented.

        no, point of patents was to get protection on a specific way to implement a technical solution, for example to create an internal combustion engine you'd use valves and a cylinder and some way to deliver fuel/air mixture into it, have it attached to a set of wheels in specific way that's doable. you wouldn't grant and uphold a patent on something as "4 wheels and a motor" which is on some level a mere idea, but not a technical solution at all.

        a quick fix would be that in order to get the patent you would need to submit a device and it's plans, including the software that makes it tick, to the patent office. that way you couldn't patent a perpetual motion machine without building one and showing how it works - which would be the point. that would protect your porridge boiler from 1:1 chinese copies but not from a ceramic pot. you also shouldn't be able to patent a chemical substance(which seems also to be a recurring thing for people to try), but you could patent the most viable technical solution for making said substance..

        and supreme court definitely isn't the solution, no amount of hard work from them is going to fix it really when it's broken at the other end, the cases shouldn't even hit them - they're not supposed to be the guys who figure out what the law should be really.

        • by mark-t (151149)

          "....that way you couldn't patent a perpetual motion machine without building one and showing how it works"

          You can't do that now anyways.

        • no, point of patents was to get protection on a specific way to implement a technical solution, for example to create an internal combustion engine you'd use valves and a cylinder and some way to deliver fuel/air mixture into it, have it attached to a set of wheels in specific way that's doable. you wouldn't grant and uphold a patent on something as "4 wheels and a motor" which is on some level a mere idea, but not a technical solution at all.

          A good question at this point is, how does that translate to the realm of software?

          Clearly, source code is too narrow - patenting it would be akin to patenting an ICE where valves are made of a specific alloy, and positioned in very specific location on the cylinders. This would make the patent essentially useless, since it could be trivially circumvented by changing relative positions slightly. In any case, we have copyright to protect specific code.

          On the other hand, a typical software patent today really

  • by Anonymous Coward

    It's a balance between damage and benefit and the balance is firmly in the 'damage' side currently. Throwing more industries into that mess does not a fix make.

    The benefit was to award exclusives in areas where invention cost was high and time to market long. Thus it enables the invention. This is not true of software, where you don't need to build a factory to make the product you just invented, and thus time from invention to market is too small.

    The damage is 1) complex systems can be blocked by individua

  • IBM and patents (Score:4, Insightful)

    by Anonymous Coward on Monday May 14, 2012 @07:29AM (#39993185)

    Lets take a look, machine translation is done by companies like Google and Word-lens. They are the ones inventing and making products. However if you look at the patents, this is typical:

    2009: "U.S. Patent # 7,610,187 - Lingual translation of syndicated content feeds ", a typical IBM patent.

    Now the patent isn't enabling the invention here, IBM has just done the typical thing, looked at what people are doing and patented around it. This isn't to create things of value because IBM don't make translation software, they make patents. It's about using the weakness of the patent system to make money from companies that *are* inventing things. It adds an overhead to those companies, an extra cost in their R&D budget.

  • by MikeRT (947531) on Monday May 14, 2012 @07:42AM (#39993237) Homepage

    We pressed him on this. Michel conceded the problem was less that it was too anecdotal and more that he disagreed with the book's premise—that high litigation costs were a sign the patent system wasn't working.

    If the cost of enforcing the patent equals or exceeds the recoverable benefit, you have just conceded the fact that the benefit no longer carries more than marginal economic value to the alleged beneficiary. The best that could be said here is that it distracts a competitor. The worst (and probably closer to reality) case scenario is that the pursuit of marginally valuable patents creates a perverse incentive that distracts a company from more useful economic activities.

    It's really hard to take seriously someone who says they're all about facts and figures, but then jettisons economics because the economic aspects of his preferred system are abysmal. There will come a day, at the rate we are going, where the rule of law will be formally dead in the US similar to how it is in Russia because the legal profession (and judges and prosecutors in particular) have made the cost of participation so high from various factors ranging from failing to sanction frivolous lawsuits and criminal charges, to allowing blatant corruption. As it currently stands, it's on life support.

  • by sproketboy (608031) on Monday May 14, 2012 @08:13AM (#39993349)

    But their duration should be shortened to 2 years to account for time to manufacture. The patent system was developed for physical devices which historically could take years to manufacture. Software is out the door in 6 months.

  • In one sentence:

    I am a software author and I want to have the same right to publish texts I write as other authors have.

    If you don't agree, why should novels, film scripts, musical genres, comic characters, etc, be exempt from patenting?

    • by shentino (1139071)

      Because they already have copyright protection.

    • by chrismcb (983081)

      I am a software author and I want to have the same right to publish texts I write as other authors have.

      You do have the same right. I'm not sure I understand your question.

      • by pesc (147035)

        Can I publish program my own text that encodes and decodes H.264 video without infringing a patent?

        Can I sell that text? Like other authors can with their work?

        Programs = text.

  • by Kirth (183) on Monday May 14, 2012 @08:49AM (#39993591) Homepage

    I don't see anything to justify "software patents" in the first place, and actually, patent law forbids it. Everyones.

    Just because some idiot lawyers redefined "software" as not being "math", because they couldn't grasp the math isn't enough reason to not ditch illegally granted patents.

    There is nothing to "opt out"; the situation with these illegally granted patent just needs to be resolved.

    • by Grond (15515)

      Software patents are not patents on math because they are tied to machines, networks, sensor input, and other physical artifacts. No amount of thinking about matrix transformations will cause three dimensional graphics to appear on a computer screen. No amount of thinking about the Page Rank algorithm will cause internet search results to appear. A patent on an algorithm or a data structure is in no way a patent on the underlying math.

      Just because some idiot lawyers redefined "software" as not being "math", because they couldn't grasp the math isn't enough reason to not ditch illegally granted patents.

      I'm a lawyer, and I also have both bachelor's and master's degrees in

  • For a judge who served on the court that "opened the floodgates for software patents," this guy knows remarkably little about software. He (self-admitting) doesn't even know anything about the software industry or its current disregard for patents. How can we take any of his comments seriously? The interviewers did ask some thoughtful questions, but I wish the interviewers would have mentioned that the current approach in the industry uses terms like Mutually Assured Destruction.

    "If software is less dependent on patents, fine then. Let software use patents less as they choose," Michel said.

    "Yeah, if countries didn'

  • by mattr (78516) <mattr.telebody@com> on Monday May 14, 2012 @09:54AM (#39994089) Homepage Journal

    The software industry is indeed different.

    There is a reason why people say an Internet technology year is like 7 years in another industry.

    If patents are intended to protect inventors while commercializing their inventions, then current patent policy is a grevious failure and harm to inventors, and must be scrapped or greatly reformed.

    Following are some key points:

    - Huge number of obvious patents

    - Large companies forced to buy tens of billions of dollars in patents as insurance against mutually assured destruction. This warfare means a single inexperienced jury can greatly impact trillion dollar multinational business strategies and a great segment of the global population, while making further invention exponentially risky.

    - Smaller companies are unable to defend themselves in this warfare. They are periodically destroyed by large companies wielding patent weapons.

    - U.S. inventors are put at a disadvantage by patents / legislation due to the immediate nature of software / Internet / speed of development overseas

    - Mathematical nature of software languages and code

    - Cooperative nature of software repositories, libraries, class hierarchies and APIs

    - Revolution of the software industry, as a simultaneously cottage industry and international in nature

    - The nature of software and the Internet means code can be transparently executed on servers in other jurisdictions.

    - Legislation is both hidebound, slow and naive while having a permanent and disproportionately large impact on the software industry. A quickly reacting and quickly editable legal board is probably necessary if laws on software are to continue realistically.

    As other industries become more and more dependent on software, they too will become more endangered by software patents, and by Internet-style information technology based disruptions. As it currently stands, individuals are at a severe
    disadvantage in patent wars and on a global stage due to the USPTO's spamming of software patents with a total lack of responsibility for the massive losses in time and money required to justly determine the patents' validity after the development of critical infrastructure using them.

  • by Animats (122034) on Monday May 14, 2012 @12:02PM (#39995727) Homepage

    I'm seeing the usual anti-patent rants here, and many of the usual mistakes. Some corrections:

    • Software patents are new. The first true software patent was for SyncSort, in 1971. This was the first large-data sorting algorithm to beat O(N log N), and was a huge win for data processing at the time.
    • The Internet is different because it moves on "Internet time". The Internet is old. The ARPANET was running in 1969, and the Internet, compatible with present packet formats, has been running since about 1980. The World Wide Web is more than 20 years old now, longer than the life of a patent. Something similar happened in the electrical industry from 1885, and in radio from 1910. There were many basic patents, and they're all expired now.
    • Software is "math" or a "mental process". Software is a process performed by a machine. Patent law covers processes performed by a machine. Purely mathematical computations have run into patent problems, but few programs are based on a simple mathematical formula.
  • by 3seas (184403) on Monday May 14, 2012 @12:12PM (#39995861) Journal

    There are some thing universally accepted as not being patent-able: Natural Law, Physical Phenomenon, Abstract Ideas and from these we also get Mathematical Algorithms. These are the components of Software. There are natural laws and physical phenomena that apply to the creation and use of abstractions, and in this case the abstraction is often perceived in terms of mathematical algorithms. http://abstractionphysics.net/pmwiki/index.php [abstractionphysics.net]

     

  • by Grond (15515) on Monday May 14, 2012 @01:42PM (#39996971) Homepage

    In order to ban software patents, one must first define software patents. I challenge anyone in favor of banning software patents to come up with a definition of the term that is neither under- nor overinclusive, can be easily and unambiguously applied, and cannot easily be gamed. Here are some example technologies to think about as you develop your definition:

    1. A machine that cures rubber by heating and cooling it, controlled by hand.
    2. A machine that cures rubber by heating and cooling it, controlled by a computer program using a new, nonobvious, and useful application of a mathematical equation.
    3. A new and nonobvious kind of rubber curing machine that uses such a complex curing process that only a computer could control it, resulting in a significantly superior product.
    4. A computer program for controlling the rubber curing process using a new, nonobvious, and useful algorithm that could only be carried out by a computer, resulting in a significantly superior product.
    5. A computer program for modeling the rubber curing process using new, nonobvious, and useful applications of mathematical equations.

    If you want to ban software patents, where do you draw the line?

    • by chrismcb (983081)
      I'm not exactly in favor for software patents. Partially because I think it is more like "here is a black box. I'm telling you this black box does X, so give me a patent on X"
      But your example has nothing to do with software patents. It has to do with curing rubber. In this case the software is just a piece of the process, a tool. This is a lot different than, "patent a cursor by using EOR"
      • by Grond (15515)

        But your example has nothing to do with software patents. It has to do with curing rubber.

        Even number 5, which is strictly a patent on a computer program for modeling the rubber curing process and thus involves nothing physical, apart from the computer itself? What about a patent on a computer program for simulating the behavior of objects made of rubber (e.g. in a 3d modeling program)?

        In this case the software is just a piece of the process, a tool. This is a lot different than, "patent a cursor by using XOR"

        How is that different? The software is just a piece of the process for displaying a cursor. What's so different about a cursor on a computer screen and a piece of cured rubber? They're both useful, physical ap

    • by pesc (147035)

      I am happy if the patent law contains an paragraph that states that buying, selling, writing, downloading, installing or executing software will never infringe on any patent.

    • by Fned (43219)

      If you want to ban software patents, where do you draw the line?

      1. A machine that cures rubber by heating and cooling it, controlled by hand.
      2. A machine that cures rubber by heating and cooling it, controlled by a computer program using a new, nonobvious, and useful application of a mathematical equation.
      3. A new and nonobvious kind of rubber curing machine that uses such a complex curing process that only a computer could control it, resulting in a significantly superior product.

      Right here.

      4. A computer program for controlling the rubber curing process using a new, nonobvious, and useful algorithm that could only be carried out by a computer, resulting in a significantly superior product.
      5. A computer program for modeling the rubber curing process using new, nonobvious, and useful applications of mathematical equations.

      If the machine is patented, no one can use the software in 1-4. (Yes, including 1. Think about it: could you patent both the machine in example 1, and the instruction manual for curing rubber using it, separately? Not really).

      In the case of 5, why should that software be patentable? Any actual useful results from the software WOULD be patentable, provided they could be physically implemented. There is no need whatsoever to patent the software itself.

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