Forgot your password?
typodupeerror
Patents Software The Courts Your Rights Online

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.'"
This discussion has been archived. No new comments can be posted.

Federal Patents Judge Thinks Software Patents Are Good

Comments Filter:
  • In other news (Score:5, Insightful)

    by GoodNewsJimDotCom (2244874) on Monday May 14, 2012 @05:28AM (#39992961)
    Drug enforcement agents think the war on drugs is a really good thing.
  • by Anonymous Coward on Monday May 14, 2012 @05:29AM (#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.

  • by Alranor (472986) on Monday May 14, 2012 @05:34AM (#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?

  • Exactly (Score:4, Insightful)

    by Kupfernigk (1190345) on Monday May 14, 2012 @05:52AM (#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.
  • by trout007 (975317) on Monday May 14, 2012 @05:54AM (#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.

  • by chrb (1083577) on Monday May 14, 2012 @06:10AM (#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 chrismcb (983081) on Monday May 14, 2012 @06:12AM (#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.
  • by geoskd (321194) on Monday May 14, 2012 @06:16AM (#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:In other news (Score:2, Insightful)

    by arth1 (260657) on Monday May 14, 2012 @06:18AM (#39993145) Homepage Journal

    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.

  • IBM and patents (Score:4, Insightful)

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

  • Re:Exactly (Score:4, Insightful)

    by demonlapin (527802) on Monday May 14, 2012 @06:57AM (#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.)
  • by Savage-Rabbit (308260) on Monday May 14, 2012 @07:14AM (#39993353)

    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 and money you made while developing and perfecting your invention. I agree with most of what the anti patent people are saying, the patent system is broken, but shooting the dog in not necessarily the best way to stop it from barking.

  • Re:In other news (Score:3, Insightful)

    by jedidiah (1196) on Monday May 14, 2012 @09:11AM (#39994249) Homepage

    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:In other news (Score:4, Insightful)

    by jedidiah (1196) on Monday May 14, 2012 @09:15AM (#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.

  • by jedidiah (1196) on Monday May 14, 2012 @09:20AM (#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.

  • Re:In other news (Score:3, Insightful)

    by jmactacular (1755734) on Monday May 14, 2012 @10:40AM (#39995415)

    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 even deluding himself into thinking his legacy, his life, had meaning, for all the years of what he did on the bench were good, instead of really just perpetuating the problem.

  • by Anonymous Coward on Monday May 14, 2012 @05:15PM (#40000057)

    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 mean the result is in any way predictable. Hell, the halting problem alone shows that unpredictableness.

    You inadvertantly validated the point. English works of literature are not patentable! The source code of a program should be copyrighted, as it was during Xerox vs. Apple and Apple vs. Microsoft.

    http://en.wikipedia.org/wiki/Apple_Computer,_Inc._v._Microsoft_Corporation

    Corporations, in the interests of preserving their monopolies have worked hard to change the laws of the United States and by treaty, the rest of the world.

    No. Hardware understands machine code - instructions, addresses, etc - which happen to be encoded in binary, but could just as well be encoded with pictures of cats.

    Cats are numerable, but that is not the point. Lacking an understanding of and, nand, or, & nor gates, one is tempted to imagine that magic occurs at the hardware level. Really, it is all as simple as turning on and off light switches. Here is an example made of wood if it helps.

    http://www.youtube.com/watch?v=GcDshWmhF4A

    The math does not change, despite the context.

    http://en.wikipedia.org/wiki/Turing_completeness
    http://en.wikipedia.org/wiki/Nondeterministic_finite_automaton

    Patents are not supposed to cover particular implementations, but higher level concepts that can be implemented in many ways, just like a drug patent covers all drugs with a particular active substance and not a specific mixture that is comprised in a tablet.

    It is the "particular active substance" that is patented. This does not occur in software, which is written like a book, movie, or song.

    Why is software considered patentable AND copyrightable? "Intellectual Property" is an illusion created by those who hope to confuse the rest of us into believing that one can own thoughts. Only the United States courts insist on patenting software - against the advice of the USPTO and the software industry. Copyright is sufficient. It seems evident that lawyers either do not understand software, or insist that reality conform to their wallets.

The reason that every major university maintains a department of mathematics is that it's cheaper than institutionalizing all those people.

Working...