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EFF Proposes a Working Code Requirement For Software Patents 130

Posted by Soulskill
from the system-and-method-for-manipulating-0s-and-1s dept.
Juha Saarinen sends news that the Electronic Frontier Foundation has proposed a fix for software patents in general and patent trolls in particular: requiring applicants to provide specifics about their solution. They say the applications should include working code, or at least "detailed, line-by-line notations explaining how their code works." "And if they do get a patent, they should be limited to the invention they claimed. We think software patents are bad news, and incredibly harmful to our society and economy. We wish we didn’t have to deal with them at all. But by fixing the functional claiming problem, and limiting patentees to a narrow invention that they actually came up with, we would also limit the amount of harm those patents could cause. The Patent Office does not (yet) have the power to get rid of software patents entirely, but it can fix the functional claiming problem."
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EFF Proposes a Working Code Requirement For Software Patents

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  • Incidentally (Score:5, Insightful)

    by Anonymous Coward on Friday February 15, 2013 @12:06PM (#42911959)

    This would also allow people who did license the patent to use the code rather than having to re-invent it themselves from scratch, or for that matter people coming along when it had expired...

    Hang on isn't that half the point of the patent system? To grant a monopoly on an invention for a limited time in return for providing sufficient information in sufficient detail such that said invention can be replicated when the patent expires?

    • Re:Incidentally (Score:5, Insightful)

      by DickBreath (207180) on Friday February 15, 2013 @12:09PM (#42912003) Homepage
      In the case of software 're-invent it themselves' is equivalent to 're-implement it themselves'.

      If I can re-implement it without any reference to the patent, and possibly without even knowing that the patent ever existed in the first place, then we're talking about something so obvious that it should not be eligible for patent protection.
      • If you find a way to make your cold remedy better by changing how you make it, then you get another patent.

        If you find a way to code up a software patent better by changing how you write it, then you get another patent.

        Except in the latter case, you want that to be the same patent as the original.

        Now why is that right?

        • If I can code up some supposed 'invention' that is pure software, then I don't want it to be the same patent -- I want to INVALIDATE the patent. If it's a novel invention, then I should not be able to easily reproduce it without the information in the patent itself.
          • So if two or more people can possibly think of the same physical idea and they can also build it then the invention should not be patentable? That's quite a different take on the matter...
          • It's really hard to prove that you never looked at a patent when implementing something.

            The only way for this to work would be if it applied between the time of patent application and the time of patent granting. If multiple applications cover the same thing, then rather than "first to file" all the applications for that patent should be invalidated.

      • If someone files a patent, and if before it is granted someone else files for the same patent, then both should be invalidated due to being obvious.

    • In addition, this also allows code to be written that does something very similar, which doesn't actually infringe on an existing patent. Coming up with a new way of doing the same thing has always been protected by the patent system ... until hidden mathematical formulas (code) began to be patented. In fact, mathematical formulas are the first kind of patent that doesn't require disclosure of how it actually works.
  • by DickBreath (207180) on Friday February 15, 2013 @12:06PM (#42911965) Homepage
    The question could be asked, why isn't Copyright protection sufficient for your code?

    If someone else independently can implement code that does the same thing, then it is obvious it should not be eligible for a patent.
    • by mark-t (151149)

      6 words:

      Alexander Graham-Bell vs. Elisha Gray.

      One excellent example of practically simultaneous invention.... was it therefore too obvious to have warranted a patent at the time?

      I mean, quite frankly, I agree with you... at least in principle. But it's worth considering what it really means for future inventors.

      • Re: (Score:3, Insightful)

        by DickBreath (207180)
        Was it therefore too obvious? I would say possibly, maybe probably.

        Two practically simultaneous independent inventors should be evidence of obviousness.
        • by bws111 (1216812)

          How the hell can you say it was obvious? Do you even know what the word means? Do you think these two guys just woke up one morning, having never thought about the idea of a telephone before, and instantly knew exactly how to make a working telephone? Or do you think it is more likely that they, independently, spent many hours, days, months, or years thinking and experimenting before they found a solution that worked? Finding the answer at approximately the same time in no way indicates obviousness, it

          • Yes, the telephone was obvious. Anytime the issue is decided by a foot race to the patent office, you are dealing with something that would have emerged in due time without any artificial patent incentives.

            Patents should be reserved for cases where the invention is (a) very expensive to develop and bring to market, and (b) otherwise vulnerable to being guarded as a trade secret, in a way that would harm progress in the field if not disclosed. The telephone doesn't count, and neither do most software and b

            • by bws111 (1216812)

              Anytime the issue is decided by a foot race...

              Evidence, please? Here you have two people who clearly were motivated by patents (or else they wouldn't be racing to the patent office), who, after a period toiling, came up with a solution to a problem. And from that, you somehow make the enormous leap that 'it would have happened anyway'. Where is the proof of that? And by the way, the purpose of patents is to encourage progress, not 'let it happen in due time anyway'.

              Patents should be reserved...

              According to who? That may be what YOU happen to wish patents are, but it was cle

            • For you to argue that when the two people have the same idea at close to (or even exactly) the same time that the idea must therefore be OBVIOUS is ludicrous. To then go on to state that it would have "emerged in due time without any patent incentives" (and I assume you mean no other "artificial incentives" too) means you don't GET IT.

              It's ludicrous because creative, intelligent people often come up with the same answer to the same question - only it's relatively rare that they're focus is on the same que
            • by chrismcb (983081)
              define "very expensive" To be its in the the thousands of dollars, to Apple its in the billions.
              Yes, the telephone may have come about eventually. But would people have slaved away on it, to bring it to fruition sooner?
          • how does it make sense that the first one to file for a patent gets *all* the rights and the other guy gets none of them?

            The whole point of the patent system is so that knowledge doesn't get lost. If multiple people independently invent something (regardless of how much time was involved) then by definition that thing is not so original that only one person in the world could figure it out.

          • I'm not arguing with you bws111, but I do want to add an important note. Obviousness in the patent office is actually a little more specific. Obviousness is determined by whether a solution would be "obvious to someone who practiced in the field". So, would a car part be obvious to someone who worked in automotive / engineering is the real test for obviousness.

            I'm guess that these were not the only two guys working on this task. I'm also relatively confident that they were experts in their fields. That it
            • by bws111 (1216812)

              Yes, you are correct. Thanks for the clarification.

            • by bws111 (1216812)

              Actually, to further clarify, the exact phrasing in the law is "... would have been obvious at the time the invention was made to one having ordinary skill in the art..." (emphasis mine). So the fact that the answer was obvious to some genius has no bearing, it must be obvious to an ordinary practitioner of whatever field the subject is in.

              • Yeah, I knew I left out a word and I thought it was important... didn't realize it was THAT important! It reminds me of the scene in the first Iron Man when Jeff Bridges character is getting all mad at his scientists for not being able to miniaturize the "arc reactor". The scientist on staff are almost assuredly at least ordinary skill in the art or better. They try to explain to him that it's "impossible" and he gets very upset:

                Bridges: "Impossible? Tony Stark built this in a cave! From scraps!"

                Scienti
          • If you have to think about a solution to a problem at all then the solution is not obvious.

            Nonsense. Even the most obvious solutions to problems require some thought: you need to think about the problem and draw upon what you already know in order to arrive at whatever logically follows.

        • by chrismcb (983081)
          Non Obviousness doesn't mean only one person in the world can come up with the idea. In the US at least, it is not obvious to "Person having ordinary skill in the art" Which means several people can come up with the idea at the same time, and it still not be obvious. Cause you know, there are more than one people that have extraordinary skill in their art.
      • by drakaan (688386)
        Some would say that it was more than a case of simultaneous invention [wikipedia.org]...for future inventors (not programmers...inventors) it means very little.
    • by jbeaupre (752124)

      Or why aren't patents and copyrights mutually exclusive? How can you claim something is a patentable invention and copyrightable work of art?

      • I don't claim that software is a work of art. Some do. I would be willing to claim that some software may be a work of art if there is something particularly artful about it.

        Things other than works of art do have copyright protection.

        Furthermore, I do NOT claim software is a patentable invention.

        I cannot tell, but you might be in agreement that software should not have patent protection.
    • by Bomazi (1875554)

      I think we could take care of the obviousness criterion with something like this:

      To submit a patent you should be required to provide a spec, an implementation, and a reward. Then the spec is published and if anyone can come up with an alternate implementation within a few days (or weeks), or prove that the submitted implementation doesn't work, he gets the reward and the patent is refused, otherwise the submitter keeps the reward and the patent is granted.

      In addition, every time you submit a patent that ge

      • Why? If you can come up with an alternate implementation that gets the job done, doesn't step on the patent, and is good enough for you then just use it? Who gives a shit if the other guy has a patent on his own little implementation?

        I suppose it the guy came up with a GREAT implementation and your implementation only just kinda works (slower, more memory usage, fails in certain cases, etc) then they actually came up with something valuable and it was in fact not obvious. They shouldn't be penalized for
    • by Grond (15515)

      The question could be asked, why isn't Copyright protection sufficient for your code?

      Because copyright only protects the non-functional creative expression, not the functional aspects of the code. 17 U.S.C. 102. The patent, correspondingly, protects only the functional parts. This is the requirement that an invention be 'useful' as found in 35 U.S.C. 101. The two forms of intellectual property cover entirely non-overlapping subject matter.

      And this is not an academic distinction. Consider, for example, a server-based web application. Your code, even your object code, is entirely hidden

    • by drinkypoo (153816)

      The question could be asked, why isn't Copyright protection sufficient for your code?

      The purpose of copyright in the USA is to promote production by securing the right to copy and thus promoting financial incentive. The purpose of patents is to provide financial incentive both to invent and to register, so that we can learn from one another's inventions. This is why software patents should require the inclusion of code or psuedocode, if they are to exist at all.

      If someone else independently can implement code that does the same thing, then it is obvious it should not be eligible for a patent.

      Obviousness is a separate metric. If someone else can independently find a different way to do the same thing, then they can patent

      • That is an immature idea, I am curious what the FFII says to all these EFF amateurish proposals.
    • by bws111 (1216812)

      It is obvious that you don't know what obvious means. It does not mean that someone working independently could possibly come up with the same solution. It means that no work is required to come up with the solution at all.

      • by Anonymous Coward

        It means that no work is required to come up with the solution at all.

        Nothing ever could be done with "no work". Your definition is so strict that "obvious" carries no meaning because it is an impossibility. Since all words have meaning and your definition has no meaning, your definition is wrong.

        • by bws111 (1216812)

          The real world (and in particular, the law) does not exist in some literal, binary, geek universe. Ask a thousand ordinary sighted people how much work it would be to determine if the person facing them has a nose, and they all would say 'none'. Ask them how much work it would be to determine the other person's blood type, and the answer would be 'quite a bit'.

      • It is obvious that you don't know what obvious means. It does not mean that someone working independently could possibly come up with the same solution. It means that no work is required to come up with the solution at all.

        It doesn't mean either of those things. If a person having ordinary skill in the art can come up with a solution by drawing upon existing knowledge to arrive at whatever logically follows from whatever is known by such a person, then it's obvious enough. As for independent invention, whil

    • by chrismcb (983081)

      If someone else independently can implement code that does the same thing, then it is obvious it should not be eligible for a patent.

      That isn't how "obviousness" works. First of all, it isn't that it can't be obvious to anyone else in the world. And secondly, at some point in the future it will become obvious. If you want to enjoy a limited monopoly, that limit will still extend beyond the time it becomes obvious.
      Still doesn't mean you can get a software patents for ideas, let alone ideas that are obvious.

    • If someone else independently can implement code that does the same thing, then it is obvious it should not be eligible for a patent.

      I am not so certain that it is so very obvious. Lots of people can do something they see someone else do first. None of them would have been able to do it ever if they had not seen someone else do it first.

      Patents can turn the impossible into the possible. It is a shame that it is not what they are currently doing.

  • by Qzukk (229616) on Friday February 15, 2013 @12:07PM (#42911969) Journal

    The majority of the software patents I've seen are simply a statement of a problem, not a solution. They do nothing to promote the progress of science, and as such should not be considered valid patents, and the laws should be changed to make them not valid patents.

    Following the EFF's proposition would be a good way to make sure that your patent states a solution and promotes the progress of science.

  • by Murdoch5 (1563847) on Friday February 15, 2013 @12:10PM (#42912015)
    I fully support this, I don't even understand why you can patent something which doesn't exist, work and function to an exact specification. I think you should also have to submit the code with the Patent and only the revision or acceptable deviation off the original designs can count towards the patents itself. Software patents are a horrible concept already so lets limit them as far as possible.
    • Yes, I support it, but it doesn't go far enough.
      • by Joce640k (829181)

        "Far enough" being the scrapping of all trivial patents.

        The ONLY problem with the patent office is that they accept the most trivial, obvious patents imaginable. Despite that fact that patents are supposed to only be granted for things that are novel and ingenious.

        • Their rationale for that is, if it was obvious, then someone would have done it before.

          That leads to the practice that the first person to do something totally obvious can get a patent on it.

          They cannot seem to reason that: obvious things exist, someone has to be first to do something obvious, therefore merely being first is not proof of novelty. They need to work harder on determining what is novel.

          But hey, being first is a quick and easy test for a patent examiner looking to rubber-stamp the la
  • by stevejf (2724307) on Friday February 15, 2013 @12:11PM (#42912023)
    This doesn't necessarily do away with patent assertion entities (trolls). Many PAEs are not actually the original inventors/assignees of the patents, but rather buy them later on and begin filing infringement lawsuits. This requirement would, however, reduce the number of startups-turned-trolls who filed and were granted patents but never followed through with development. It also might make the provisional application system more useful, allowing start-ups to file provisionals to establish priority, but also requiring them to develop a working prototype before granting a utility patent.
    • by RobertLTux (260313) <robert@lauren c e m a rtin.org> on Friday February 15, 2013 @12:20PM (#42912125)

      separate the patent fees into a Prelim and a Filing fee. Then if you want to file a prelim patent (to get cover while you do the code) you then pay the Filing Fee to upgrade it to a Full Patent ap. If it gets rejected you can refile but you have to pay the Filing Fee each time (so try 12 times you pay the prelim fee and 12 filing fees).

      This will also cut down on the "shotgun" approach to patents.

      Oh and a Big Reform would be to autodrop patents in the form of X on %new platform% or X And Y Together (unless you bind them in a novel manner)

      • If you're looking to tweak fees as part of reforming the patent system, here's a simple idea.

        The fee to file a patent that is rejected is large. The fee for filing a patent that is granted is small or free.

        That aligns the incentives for how they should properly be. Trolls won't file a patent that they aren't sure will stand up to scrutiny. Those who file bad patent applications pay for the staff and resources to give sufficient scrutiny to reject bad patents.

        It protects small innovators who have
        • by Shagg (99693)

          The fee to file a patent that is rejected is large.

          Wait... they reject patents?

          • They would if the fee to do so were large.

            There would need to be mechanisms so that unfairly rejected patents could be somehow appealed, and if later granted, there were some penalty to the USPTO. It needs to be carefully balanced to prevent an incentive for abuse. Right now the USPTO has no incentive not to abuse, and possibly has incentive to abuse to justify their existence.
        • by jd659 (2730387)

          The fee to file a patent that is rejected is large. The fee for filing a patent that is granted is small or free.

          This will not work and will create the wrong incentives for the patent office to reject even the innovative and patentable idea.

          What should be the "large" fee? Let's say filing a patent is free and the rejection is $10,000. Reasonable? For a small investor, the $10,000 might be a large enough fee not to file even the most brilliant idea, but for a large company that currently spends thousands of dollars on filing each patent $10,000 is nothing. So the large companies will keep on filing the silliest

      • Extra costs will hurt small guys more than big ones, who are already probably spending a lot more on lawyers specifying things than the government fees.

        In many cases it's about cockblocking competitors, not limited to trolls, and no little stinking fee is gonna get in the way of multimillion dollar operations.

        • not "extra" fees as such but separating the existing fees into two parts (one of which can be charged more than once).

          So Jim in his garage can dream up his actually novel idea (and get a patent) but Foo Co which has 100 offices throwing stuff at the patent office to see what sticks (and clocks up 1,000,000 filings) has a nive tidy bill to deal with.

      • by Lehk228 (705449)
        place a maintenance fee on patents which will instantly void the patent if not paid
  • Interface patents (Score:4, Interesting)

    by concealment (2447304) on Friday February 15, 2013 @12:12PM (#42912027) Homepage Journal

    It seems to me like a lot of these patents are about interfaces, not algorithms or code. If you're patenting rounding buttons or that the software allows you to purchase with one click, the code is probably trivial. It's either a visual or interface idea.

    • by ZombieBraintrust (1685608) on Friday February 15, 2013 @12:22PM (#42912159)
      Thats is the point. It brings attention to the patent examiner that the solution is trivial. More patents will be rejected for obviousness.
      • Just because it's simple doesn't mean it's obvious and should be able to be patented. You need someone who knows the field to determine whether it's obvious or not, and if you have someone who knows the field looking at the working code, they could do just as well looking at the application (once it was translated into English, anyway).
      • by dkf (304284)

        Thats is the point. It brings attention to the patent examiner that the solution is trivial. More patents will be rejected for obviousness.

        Problem with that is that some patents are clever reimaginings of what is out there. While there are quite possibly other ways to achieve what they describe, the patent is in many ways a description of a piece of lateral thinking that looks at the problem space in a new way that leads to a significantly better solution. Thats very close to what patents are actually supposed to protect when you look at a lot of examples from history of physical inventions, and yet it tends to be "totally obvious" after the f

    • With your example of one-click in particular, the time was simply ripe. If Amazon hadn't done one-click, someone else would have within a very short time. That means it really was obvious. If Amazon hadn't done it, someone would have done it, probably within six months.

      Merely being the first to do something obvious should not make it patentable.
  • To be able to bring a patent infringement lawsuit in these software cases, they should require the lawyers to do the coding live. It would either slow them up, or make the courtroom more interesting. You'd at least have an idea that the people involved knew what they were doing.
  • by gorbachev (512743) on Friday February 15, 2013 @12:24PM (#42912207) Homepage

    I expect a tremendous boom in offshoring development work as a result.

    Every patent troll is going to contract the cheapest possible software development team to implement working code for their idiotic patents.

    This is not the right solution to the problem.

    Limiting the duration of software patents would be a better one, if abolishing them entirely isn't on the table.

    • by godrik (1287354)

      I actually disagree with you. It would actually solve lots of problem. For instance, you could easily claim that wat you implemented is significatively different from what is claimed in the patent. Therefore, you are not violating it.

      In many cases, that would actually help.

    • by DickBreath (207180) on Friday February 15, 2013 @12:36PM (#42912361) Homepage
      It's not a complete solution to patent reform. It's just a small part. It raises the bar. Instead of just filing a patent on some idea, you at least must have something that works.

      I worked as an 'expert' defense witness on a patent case where the patent was just a 'paper patent'. (This was because I had co-developed a product and still had a shrink wrapped boxed copy from way back when.) The patent had many internal inconsistencies. The parties ended up 'settling' after I provided a working implementation that had been sold and offered for sale over a decade earlier. I assume the 'settling' meant the troll went back under the bridge.

      If this specific patent had been required to have a working implementation, it would never have been granted in its current form.
    • by jfengel (409917)

      That was my first thought as well. A working implementation of "one click shopping" won't take more than a few minutes to cobble together. The price is significantly lower than the costs in filing a patent.

      It's possible that seeing the trivial implementation might make it clearer to a reviewer that the patent is obvious to one skilled in the art. But then, that should have been obvious already, to one skilled in both the arts of writing software and patent law. (Which isn't the vast majority of people here,

    • The real point is, most software patents are abuses of the system. If it becomes necessary to post working code, this will in itself be a huge disincentive for those who are currently using patents inappropriately. Much of the problem will solve itself.

    • by greg_barton (5551)

      I seriously doubt that. Someone developing a patent does not want it spreading very far before filing. I doubt they'd let the cat out of the bag, especially to foreign unknown coders, before filing. (Especially because the offshore developer house could file foreign patents before the actual patent developer, even if they make it to the US patent office first.)

  • And the carpetbaggers know this. Expect them to fight like rabid animals against any regulatory effort to kill their business model.

    Naturally, this could happen only in America: where if you're rich enough, you can shape the law to prop up a bad business model, no matter how lousy.

    • We like the free market so much, we let those with the most money decide what restrictions exist on the free market.

  • by Anonymous Coward

    If the only thing novel about your invention is that you are doing it in software, with a computer, on the internet, etc then it should be obvious as a matter of law.

    Priceline is a great example. Take a 700 year old Dutch auction, put it on the internet and suddenly you get a patent? No. Just no.

    • What you said reminds me of a method I've seen to make existing ideas, and even existing patented ideas re-patentable. Take the idea and then add to it the suffix: ". . . on an iPhone". Poof! Like magic. You've just invented something new.
      • No, you need to keep it generic: "... using a computing device." Now your re-patented idea applies on Windows PCs, Macs, Linux PCs, desktops, laptops, tablets, smartphones (iOS/Android/etc), and anything else that could generically be called "a computing device". (Even if your originally envisioned "computer device" was a big desktop PC with a dial up connection to a dedicated, non-Internet connected server.)

        • Yes, I agree. I understand your generalization and I have thought of it and I should have patented it first. :-)

          But I said "reminds me of a method I've seen". I remember a discussion some long time ago about several patents, before the thermonuclear patent wars, that were constructed using the method I described. :-)
  • I'm surprised this hasn't been a basic requirement for patents of all types from the get-go. The application should also be required to show that their patent shows significant improvement over previous software, not just a minor obvious tweak.
    • by suutar (1860506)
      It has. The patent is supposed to include enough information for a skilled practitioner to build the invention. Software patents in particular have been allowed to ignore this for a while.
  • Doesn't copyright already protect working code?

    Or is this "You can have the idea if you've actually provided a concrete example"? Just raising the bar for getting the patent.

  • because the original idea of the patent system is that you don't have to have company secrets about your solutions which are very scary (even from a company perspective as you never know who will talk) but can sort of open them up without losing control. The important part here is the _solution_ part. A Patent has to provide an implementation that addresses a problem, saying "we have a system that fixes the problem xyz" is not sufficient for a patent.
  • You had to submit a mostly working model of what your patent covers. They did away with this years ago, and the models became collectors items.

    Makes sense for algorithms and code. It looks like they used to do this - the patent for RSA has a very detailed explanation on *exactly* how it works. It's practically pseudo-code. Forcing an applicant to specify the exact implementation should help with the vagueness problem of software patents (There's a list of HTTP links and a computer program downloads them aut

  • by Grond (15515) on Friday February 15, 2013 @01:05PM (#42912887) Homepage

    The United States uses a system called "peripheral claiming," in which patent applicants stake out the outermost boundaries or periphery of their claimed invention. This is in contrast to the older (think the 1800s) system of central claiming, where the applicant would claim the "heart" or "gist" of the invention. The problem with central claiming is that courts had to decide when an alleged infringer got "too close" to the claim, which was often a very subjective process. With peripheral claiming, the infringer either has each and every element of the claim or they don't (with a small amount of wiggle room for the doctrine of equivalents). This forces the applicant to say, up front, exactly what they've invented and—importantly—support it in the specification.

    Over time, however, there has been a perceived (and perhaps real) growth in the number of patentees trying to make their claims cover more than they actually invented. This is what the written description and enablement requirements in patent law are designed to prevent. See 35 U.S.C. 112. I have said many times on Slashdot and elsewhere that these requirements should be tightened. What the EFF is proposing is, broadly, along those lines, though it is specific to software patents. I am generally not in favor of special rules for different areas of technology. Patent law has mostly avoided that. Copyright law has not, and it has turned the copyright statute into a sprawling mess dictated by special interests.

    If the written description and enablement requirements were tightened up, however, then one way that computer-implemented inventions could demonstrate compliance (i.e. show that the application contained "a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains ... to make and use the same") would be to provide extensive source code or pseudocode examples. But in our zeal to rein in unsupported functional claims we should not return to central claiming.

    As an aside, right now many if not most patents that involve software use flowcharts rather than pseudocode or source code. This is the result of Patent Office backwardness dating back to its initial opposition to allowing patents on computer-implemented inventions in the first place. Only now is the Patent Office finally recognizing that pseudocode or source code is much more searchable, readable, and useful for everyone involved, including patent examiners, competitors, and alleged infringers.

    • by steelfood (895457)

      I am generally not in favor of special rules for different areas of technology. Patent law has mostly avoided that. Copyright law has not, and it has turned the copyright statute into a sprawling mess dictated by special interests.

      I'm sorry, what? We have design patents already that covers "look and feel." This would be at most, an extension of an existing system.

      And copyright law is fairly unified. You may be thinking of trademark law.

      • by Grond (15515)

        We have design patents already that covers "look and feel."

        Design patents and copyright also cover different subject matter, though that's a finer distinction than utility patents and copyright.

        And copyright law is fairly unified. You may be thinking of trademark law.

        No, definitely copyright. Consider all the special rules for phonorecords, broadcast programming by cable, satellite transmissions of local programming, satellite transmissions of non-local programming, pictorial graphic and sculptural works, nondramatic musical works, computer programs, coin-operated phonorecord players, etc, etc.

  • Not all software patents cover a couple lines of code. Some represent man-decades of effort. Am I expected to first come up with my idea, then write the software, then apply for a patent and then wait 18 months (time from application to publication) to determine if someone else filed before me and that everything I have done is wasted. Do you really expect me to file the patent when the code is complete - giving someone else who does a half-assed implementation a couple year head start? Or let someone else
    • by DickBreath (207180) on Friday February 15, 2013 @02:02PM (#42913731) Homepage
      I am skeptical that a new advanced idea or new or improved algorithm that advances the state of the art would take man-decades to turn into working example code. Are there in fact, any such examples of this?

      It sounds like you're talking something you would work an entire career on from the time you're young until the time you're old to have something working. ("man-decades") Even if we're talking 2 man-decades == 20 man years, that was done as 20 people for 1 year, it does not seem unreasonable to have a working model. That had been true for non software inventions. I remain skeptical it would take 20 people a year to build a simplistic working model of even an advanced idea. The working model doesn't have to be the most efficient implementation of the idea. It just has to illustrate an advance in the state of the art.

      Yes, I know you are identifying a possible problem caused by the proposed requirement of working code. But the EFF proposal is to fix a much more serious and widespread problem that is real and not hypothetical.
  • Functional Claiming (Score:4, Informative)

    by Grond (15515) on Friday February 15, 2013 @01:17PM (#42913069) Homepage

    What the EFF is specifically decrying is functional claiming. That is, an element of a claim described not in terms of what it is but in terms of its function. For example, instead of claiming a nail or a screw, claiming "a means for mechanically fastening" or, even more broadly, "a fastening means." This is allowed under 35 U.S.C. 112 6, now 112(f):

    An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

    In other words, you can use functional claiming, but you have to explain what you mean in the specification, and you only get what you describe there, plus equivalents. If you don't describe what you mean then the claim is invalid as indefinite.

    In the case of software, generically claiming an algorithm (e.g. "sorting means") requires describing in the specification what you mean by that. There has to be some corresponding structure. Failure to properly support a functional claim has bitten many a patentee. This happened just recently in a software patent case involving Google as a defendant, for example. Function Media, L.L.C. v. Google Inc. [patentlyo.com]. Overall, the popularity of functional claiming has been dropping like a rock. From ~1992 to 2011 the percentage of newly issued patents with at least one "means for" claim fell from ~45% to ~10% [patentlyo.com]. It has since fallen to almost 5%.

  • by dweller_below (136040) on Friday February 15, 2013 @01:18PM (#42913089)
    Bracing up the "Functional Claiming" standard is a temporary fix. This fix will not hold for long.

    The history of patent office is a recurring pattern of regulatory capture, followed by declining standards, following by temporary legislative fixes. If we wish to effect long term reform, we need to recognize the inevitability or regulatory capture. We need to create processes that minimize the damage of regulatory capture.

    One resilient process would be to stop using minimum standards. A review of recent Patent Law will reveal that the minimum standard for granting a patent has consistently shifted downwards during the past few decades. This always occurs during periods of regulatory capture. We must abandon the idea that any patent that meets minimum standards is granted. Over time, the standard always degrades.

    Everybody knows how to fix this. We use the same fix throughout industry and education. We need competition. Instead of using a minimum standard, you rank Patent Applications according to an agreed measure of quality, and only grant the top 5 percent. Over time, the pressure will be to improve the quality of patent applications, instead of degrade them.

    My personal favorite measure of Patent quality is to rank them according to the damage they do to society. Compare the application to last years granted patents. Then, based on that comparison, give the patent application points for:

    • * Relative lack of clarity in the invention description;
    • * Relative lack of precision in the claims;
    • * Relative lack of originality.

    Then only grant the top applications with the fewest points. This has the advantage of being fairly easy to measure, thus it is hard to challenge in court. Also, the resulting competition will tend to simplify and clarify granted patents.

    The Patent office requires many reforms before it can return to sanity. As others have pointed out, it may be easier to simply eliminate it. But, if we pursue reform, we should recognize the cause of decay and address it.

    Other needed reforms include:

    • * Eliminating the Cost Recovery model of funding the Patent Office.
    • * Eliminating Patent Office processes that create incentive to grant poor patents.
    • * Limiting the total number of granted patents.

    Miles

    • by steelfood (895457)

      How about limiting the number of submissions per individual per time period. A lot of lawyers like to resubmit a patent until it sticks. Limit that, and it'll save the patent examiners a lot of work.

      • Sounds like they have found an effective DoS. It is made possible by the Patent Office fee structure. You can see the problem at: http://www.gpo.gov/fdsys/pkg/PLAW-112publ29/content-detail.html [gpo.gov] (Leahy-Smith America Invents Act)

        The filing fee is about 1/4 of the size of the issue fee. Once you file, you commit the Patent Office to an expensive process. This process costs the Patent Office more than the filing fee.

        The Patent Office admits this issue at page 37 of their proposed 2013 budget: http://www.usp [uspto.gov]

  • Everyone has overly complex ideas on how to reform the patent system. Why not simply leave it alone and reform the system that allows people to sue when someone violates their patent.
    In step 1 of the defense, the defendant provides prior art, claims of obviousness... to the Patent Office who then determines if the patent is still valid. The Patent Office (who are the experts, not the courts) judge if the patent is still valid based on all evidence.
    After that if it still goes to court then loser pays at
  • by Adrian Lopez (2615) on Friday February 15, 2013 @04:32PM (#42916107) Homepage

    Such a move would only serve to legitimize software patents. Let's instead get rid of software patents altogether.

  • by infinitelink (963279) on Friday February 15, 2013 @06:59PM (#42917771) Homepage Journal
    So remember the "party of no" and uncompromising intransigence of the Republicans on giving more revenue to the government without effective cuts? Well this is a good way to illustrate that thinking: letting any organization give-in on this issues gives pretext to the unprincipled people on the other side who have twisted (in collusion with courts below the Supreme Court) the legal system to bless patents on fudamental tools of the sciences and on mathematics it/them- selves.

    No matter how you spin it, speaking about its very nature, software is never an invention: it is always a logical application of algorithmic solutions to do something, and so it is never legitimately eligible for the grant of monopoly by what we call a "patent": the case used to legitimate them never did say software was patentable, only that an invention wasn't automatically disqualified from patent protection just because, in some part, it included software to function. Yet magically (because the damn sharks we call lawyers knew the potential for rent seeking), this transformed into permitting software patents: much like Justice J. Marshall's words that the Supreme Court's job is to "say what law is" turned into "what the Supreme Court says is law" in the hands of his successors and the legal system, which our founders would probably have revolted again for.

    We should NEVER compromise on permitting or supporting a position that results in unconscionable conditions: software patents are just another form of ideal policing/control, of which we already have too many examples--some in the guise of golden calves that nobody shall dare touch in politics, making truth radical these days. It must stop or else we'll turn into the stuff of Orwell's and Huxley's nightmares, at least, it will be so for those who want to innovate, do, build, support a stable society, their families, and not be slaves pacified by the next bauble and entertainment craze.

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