Patent Law Ruling Threatens FOSS 244
savio13 writes "The EFF has asked the US Supreme Court to overturn a patent law ruling that could pose a serious threat to Free and Open Source Software projects. A recent Federal Circuit Court of Appeals decision required that even the most obvious incremental advances can be patented unless it can be proved that someone else suggested it prior to the patent being filed. As such, many 'bad patents' are being used as roadblocks for legitimate innovators, especially those working for FOSS projects (who have better things to do then search through thousands of technical papers for some mention of the obvious). The full brief is available online in PDF format."
/. editors have better things to do... (Score:5, Funny)
-Rick
Re:/. editors have better things to do... (Score:5, Funny)
Sounds of death and destruction come from the corner. Panning around, we see a Slashdot editor (it doesn't matter which one) hunched over a keyboard playing the latest version of quake or WoW or Everquest (it doesn't matter which one). Almost inaudible, a "beep beep beep" sounds from watch on the editor's wrist. It's time for a new Slashdot article. He looks up at his second monitor to the open "Slashdot Submitted Articles" page and scans frantically for the words "Microsoft", "SCO" or "Patent" (it doesn't matter which one) clicks quickly at the "accept" button (maybe he gets the button for the previous article, maybe the next. It doesn't matter which one) then gets back to the real business of the day, some serious, hard-core fragging.
Rich
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Better Idea... (Score:5, Insightful)
Re:Better Idea... (Score:5, Interesting)
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For example, there's the RSA [tinyurl.com] cryptographic algorithm, and the Marching Cubes [tinyurl.com] volume iso-surface generation algorithm, just to name two of my favorites off the top of my head.
I don't consider either of these obvious. Nor do I subscribe to the notion that methods that harness the laws of mathematics are inherently less inventive than methods that harness the laws of physics.
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Except that regardless of whether you agree or not, Mathematical algorithms are supposed to be nonpatentable by law. The RSA algorithm, as best I can tell, squeezed by because of its implementation using a computer. In my opinion, the RSA patent is no more valid than any of the "do ]blah] on the internet" patents.
Regardless, though, the vast majority (maybe 99.997%) of software patents are not truly nonobvious. They are simply obvious answers to a problem that no one had posed before. Invention should
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Re:Better Idea... (Score:4, Informative)
Let's think about this for a minute. There are two common arguments for doing away with software patents: 1) It's just math (i.e., algorithms), and 2) software is already covered by copyright.
Addressing 1) first, this argument could be taken to its natural conclusion by suggesting that *nothing* should be patented, since *everything* is simply a combination of laws of nature. But if we take a step back, we realize that what people are patenting is novel *uses* for laws of nature. If I'm the first person to design voice recognition software, why would that be any less patentable than a new kind of rubber? The point (theoretically, at least) is to reward hard work and innovation. Why should software engineers be any less entitled to that kind of reward?
Some will respond to the previous points with 2). BUT, and this is an important point, copyright only covers the specific implementation or manifestation of the invention. So, if I were to copyright an insanely powerful peer-to-peer model, you would only have to use a different programming language, change the system architecture a little bit, throw a different GUI on it, and away you go. You may be copying my ideas EXACTLY, but you've found a way around the copyright. So it's clear that copyright doesn't protect certain kinds of inventions to the extent that patents do.
Now, I'll be the first to acknowledge that the USPTO needs improvement. The examination process is flawed, and recent reform proposals have fallen far short of what's actually needed. But does that mean we should just do away with an entire class of patents? Of course not.
Re:Better Idea... (Score:5, Insightful)
So, from your argument, copyright already does that for software. So what's the point of the patent again?
(Note: Ideas are not supposed to be patentable or copyrightable. Only implementations or expressions of them (respectively) are.)
Uhh, wrong. (Score:2, Informative)
If I have a patent on a braking system for cars and someone goes out and makes something nearly identical for use on trucks this is clearly patent infringement. At least I should because any smart patent lawyer will make sure "cars" never appears in the claims for the patent and it remains general. As general as possible while still preserving the con
Grandparent was correct (Score:4, Insightful)
Patents are supposed to be for specific implementations, not general ideas.
Check out the variety of automatic transmission designs, each under it's own patent. Yet clearly they do the same "obvious" task of shifting.
The only reason that isn't the case for software patents is that the USPTO and legal system haven't got a clue how to do anything but follow the money. And the money is in the hands of those who benefit from misinterpreting the law.
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You forgot to complete the sentence, but it's understandable that you did because not everyone sees the full scope. I will correct it for you:
And the money is in the hands of those who benefit from misinterpreting the law, which in turn are written in a manner that they are intended to be taken out of context or to be twisted or contorted by those same folks.
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But you also are being a little loose in your definitons: In the transmission design example, you patent the novel implementation design of the new transmission. The non-novel
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The software patent system is a piece of crap. The only people that ultimately benefit in the current system are the lawyers.
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Software patents though usually read something like "...using a method of notifying a user..." or "...receives a message..." or "...stores data..." and are totally vague and non-specific. Method of notifying a user? That could mean through sound, an alert dialog, print out, beeper, vibration, etc.
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Most software algorithms [and in many cases hardware] are just evolutions of previous algorithms. Take LZW. Take any one of the millions held collectively by Apple, IBM, Microsoft and the like. Patents which are truly original and non-obvious are the exception not the rule. And given that OSS developers don't have the money to invest in patents it's ju
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Because often the OSS implementor does not know about the patent. Try doing a search for every idea in the Linux kernel. Can't be done. It isn't feasible. So basically what you're telling me is I can sit down and implement something with zero kn
Re:Better Idea... (Score:5, Insightful)
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Most software patents are way too broad, and thus stifle creativity instead of encourage it like patents are meant to do
While I agree with most of what you've said, I think you're misinterpreting how patents are meant to encourage innovation. The primary intent is to make sure that the inventor has exclusive rights to his invention, for a period of time. This encourages inventors to invent. With it, the small research shop would invent a better mouse trap, and Big Corp has to license that idea from the
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The state granted monopoly is just a means to an end.
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Please note that I'm not speaking of software patents right now -- I'm discussing patents in general.
That being said: how do you encourage an inventor to be productive? If he's not financially motivated, he will be productive regardless. If he is financially motivated, the patent system is built to allow and encourage that -- so he will invent more things in the future. Simple positive reinforcement. I'm willing to be convinced otherwise, if you've anything to back it up.
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And if mousetraps were software, Small Research Shop would build a better mousetrap, but
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While I agree with most of what you've said, I think you're misinterpreting how patents are meant to encourage innovation. The primary intent is to make sure that the inventor has exclusive rights to his invention, for a period of time. This encourages inventors to invent. With it, the small research shop would invent a better mouse trap, and Big Corp has to license that idea from them in order to produce it -- thus rewarding the innovator. Without it, the small research shop invents the better mouse trap,
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But my voice recognition software does not include your voice recognition software (if it did, it would violate copyrights), it just is used for the same thing as yours. If I make a material that can be used for the same thing as your rubber but is made in a different way, then I do not violate patents. So why is it that if I make a software pr
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This is absolutely wrong. Laywers design to be as broad as possible. The idea of patenting a concept implemented in software removes the possibility of producing a better product that utilizes the same concept. Think for a minute, as to what we'd be facing if software patents existed 20 years ago. I dare say that the face of personal computing would be far different than we now know it, and one of the primary reasons is
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Addressing 1) first, this argument could be taken to its natural conclusion by suggesting that *nothing* should be patented, since *everything* is simply a combination of laws of nature. But if we take a step back, we realize that what people are patenting is novel *uses* for laws of nature. If I'm the first person to design voice recognition software, why would that be any less patentable than a new kind of rubber? The point (theoretically, at least) is to reward hard work and innovation. Why should softw
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No. The point, made clear and explicit in the Constitution, is to "To promote the Progress of Science and useful Arts." Rewarding hard work and innovation is a means to that end, not the end itself.
Re:Better Idea... (Score:4, Insightful)
The patent system, much like software, is the creation of our minds. It's an artificial system of monopolies with only one purpose, to maximise the amount of innovation society produces, through appropriate protection of investment. Copyright is, of course, exactly the same, only different.
Your arguments don't address the actual question, which is much simpler than technical debate about maths, the reality of the universe, and the difference between an idea and a piece of work.
The question is simply: does the patent system stimulate programmers and SMEs to invent, or does it not. It is a question with a black and white answer. Patents are either good for software, or they are bad for it. There are no special cases: any mechanism that produces more software, more cheaply, will do so systematically across all domains.
If the answer is yes, you will find programmers and the CEOs of SMEs in their thousands invading the streets, or at least writing emails, demanding more patent protection.
But, surprisingly perhaps for someone who has graduated to the position of engineer of patents, you find yourself confronted by masses of unhappy, angry, confused programmers and SME CEOs who detest software patents with such a fury that they are willing to sacrifice their time, their money, and years of their lives, in some cases, to oppose wider patentability of software.
Software patents must be stopped, and rolled back, or the software industry will suffer and in some parts of the world, die.
There is no pity in economics - inefficient systems are punished mercilessly, and if the US persists in its mindless pursuit of universal patentability, it will simply arrive at the stage where no-one - not the software industry, not the music industry, not the movie industry - will invest in copyrightable works, because every idea and concept will be owned by a patent engineer.
At which stage the patent engineers of the world can write the content.
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If you can, please list not only a patent description of yours, but also a few examples of problems you solved with patents, so I can try to alternatively solve the same problems, as a test of "triviality".
The real test of whether patents are good or bad, is not if they are analogous to "physical" patents (although it is an interesting anecdote), but whether they cont
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The purpose of patents is to encourage innovation, and it fails to do this in the case of software patents. Ergo, they should be abolished for software.
That's it. No other point needs to be made. The reason they fail to encourage innovation is because the "small guy" who invents a brilliant idea will be incapable of creating a piece of software that both incorporates his brilliant idea and also does not infringe on 100's of other patents held by large corpo
the data is the error code (Score:2)
The message The data is the error code [iisfaq.com] is a very confusing term to most people and
Lets work with an example:
This error message in the Windows NT Event log is telling us that the data bytes C6 04 00 00 are the error code. So how do we get the error code, and then what do we do with it when we have it? The 4 bytes that are listed are a LONG value this means that they can contain a value from 0 to 2147483647.
What we need to
software patents (Score:2)
...maybe the EFF can talk the US Supreme Court into invalidating ALL software patents, not just the "obvious" ones.
That's a great idea. Software never should of been patented to begin with. Or "business methods", or algorithms. Patents on these don't encourage progress they hinder it, and that was the stated purpose of copyrights and patents, to encourage cultural and scientific progress.
FalconRe: (Score:2)
I don't want them to go out and make new laws - I just want to see them strike down an obviously (IMHO) bad one.
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Many people seem to be far to eager to forget this or sweep it under the rug.
The Constitution and the Bill of Right don't just represent "good ideas" or "suggestions" they are THE LAW. Infact, they are the supreme law that supercedes any other law, period. Rants about "activist judges" and such demonstrate a fundemental misunderstanding about the nature of Anglo-American government.
Wave goodbye everyone... (Score:5, Insightful)
as Greed drives yet more brilliance out of the USA
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Yes, apparently I'm one of those who will be 'left behind' -- both by the brain drain, and by the Rapture. Sigh.
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If I can't sit in my home office and come up with ideas that could get me out of the working class w/o having to line someone elses pocket, how is that any better than Russia, Venuezuela or any other country the US leadership likes to criticize?
If you live outside of the US and are wondering, we've passed the mark - This country has moved to Fascism. Here's a hypothetical sympton: I'd argue the reason US politicia
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Presidents are either puppets for the powerful or fighting a losing battle their entire time in office.
Also, note that your most votes in history is a statistical banana - the country's population is increasing for crying out loud. Vot
New license clause (Score:4, Interesting)
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There is no license. So the users are entirely responsible themselves for the use of the software. It also means they can benefit the most.
Tom
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It doesn't need to be public domain, just free. The patent laws only prevent someone from offering for sale, selling, or importing an invention. Potentially, this means that open-source software, released under any license, would work, as long as nobody charges money for it. Does this also mean that someone could create a nonprofit org
um, wrong (Score:2)
I wish it were that easy, but a patent grants "the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States"
So even if an open source developer distributes the app that uses the patented technology for free, he's infringing on the patent since he's "making
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There is no license. So the users are entirely responsible themselves for the use of the software.
Be careful if you're releasing software, that's not true in general. Public domain software still carries liability for the originator in many (most?) jurisdictions. That's why you'll see public domain releases carrying disclaimers like http://www.marcdatabase.com/~lemur/lemur.com/galle ry-of-antiquarian-technology/pd-disclaimers.html [marcdatabase.com].
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Implementing a patented algorithm is not a civil offense. Making it available is. However, you could argue [and I dunno how effective this would be] that a public domain implementation is not endorsed by the author. For example, suppose the patent is not valid in Japan. Then clearly the presense of the software does not indicate intent since there are places
what about USPTO non-obviousness rule? (Score:2, Interesting)
Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of
Yeah, so? (Score:5, Insightful)
What really has happened is that KSR has gone to the Supreme Court asking for review, and the Supreme Court granted review.
This happened a few months back, actually.
The EFF has filed a brief in support of KSR.
About 10 other briefs in support of KSR have been filed in support of KSR, besides the EFF one, including some more important ones, like the Solicitor General's (representing the views of the US/Bush Administration).
The Supreme Court generally cares more about what the SG thinks than the EFF.
It's Not Like FOSS Devels and Users Have Any Power (Score:2, Interesting)
Stupid knee-jerk liberals (Score:2)
Two questions: (Score:2, Insightful)
Due to global trade agreements that enforce US IP laws in many foreign countries, how long will it be before no one in the world can do any meaningful research without being liable for patent infringment?
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Most large enough companies have a "portfolio" of totally abusive patents which they shouldn't have been granted. It's only a matter of time before all stores are taco bell if you catch my drift.
Tom
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The "right wing wingnuts" know a lot about judical activism since they so strongly believe in it. Examples:
Campaign contributions are protected by the first amendment (no officer, I wasn't soliciting a prostitute, I was making a political statement about legal prostitution by making a contribution).
They believe that the President has the power to wiretap US citizens without court approval, to hold people
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Moral of the story made simple: donate. (Score:3, Informative)
Obvious solution to this problem (Score:3, Interesting)
Steve
Why are you still Ignorant about Open Source? (Score:3, Insightful)
We've discussed this with you in the past, Steve- Open Source is worthless if it isn't legal and doesn't credit the inventor. For one thing, many Open Source products come from or are supp
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>legal and doesn't credit the inventor.
Yeah, I remember. There's just something about this "I want recognition" thing that rubs me the wrong way. Either you're giving away free software or you aren't. I don't really care who writes it, or why. There's always going to be some anonymous kid in a basement writing the next free piece of software just for fun.
So if you
Obvious solution? I smell a patent! (Score:2)
Laugh all you want (or not at all), unfortunately this is what the new law could potentially do.
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For an in-depth look at how this policy came about (Score:2, Informative)
Way to Kill Innovation (Score:5, Insightful)
It seems to me in a very general way that there is no sense of achievement in American business outside of the next quarter. Instead of concentrating on moving forward and doing new things, there's an emphasis on not moving at all and creating wealth by protecting what someone has.
It's become a very different kind of hostile business climate. Not so many years ago a hostile business climate was described as one with high tax burden and many regulations that made it expensive to run a business. I'd say we're well on our way to eliminating both in the U.S. and yet the business climate is even more hostile because of the threat of litigation. Is the country better off for this? For the majority of Americans, I'd say no. Not at all.
Court madness (Score:2)
Start your lawyers... (Score:4, Interesting)
The patent system was designed to shelter innovation by offering a limited monopoly to develop a business or livelihood around it. Parts of it operate quite well, however, in the intellectual life it has serious shortcomings. Software is one of those parts of the intellectual life where the character of the process is more akin to governance then to making a cunning artifact.
This therefore brings us to three observations: first, software developers move much faster then business processes; Second, the goal of business is adding value (like support and auditing) to generate sales; third, the common wealth is ill served by business turf wars. If business believes in competition, then let them coach their teams better. I'll expand on these points.
The fundamental design of systems is very fluid. As an engineer that has worked on and co-ordinated large projects, I find that I tend to go though about four or five related designs before settling on a particular architecture. I have to think of the cost of the hardware, but also of the system cost. It serves the efforts no good if I design cheap hardware that prevents the software guys from achieving the system goals. And the software guys iterate over several solutions while deciding how to partition their part. When we are very, very lucky, we may have some time to sit down together and try to find the exact right "cut here" line!
Assuming that we all managed to get it right, and we are actually delivering what the customer needs, we get to support it. That is the value of business to me, as a designer. It means that others (The Customer) can benefit from our collective work, that they can continue to do so, and that they will soon find new, interesting things for us to do. Marketing here does the research of what is out there so we can digest it and figure out the better mousetrap. They also do the customer legwork so the people we are talking to know what their system requirements are. (their business can be treated as a system in this conversation) The rest is negotiation, and avoiding the dead ends.
A humourous example: The Customer Wants a Car in the Bauhaus Style; that is, the salient marketing features are spare, rectilinear lines. The dead end is delivering Bauhaus Square Wheels. Clearly, intellegent compromise is needed.
Playing around with turf wars, the adult equivalent of King of the Hill, is a gumption trap that will suck the life right out of the organization. I don't think any intellegent executive wants this, but they'll scrap if they have to. Wisdom consists of setting up our affairs so we don't have to.
As a humourous close, why hasn't someone started to patent forms of government? I see a huge market potential in this. Dictatorships could patent Democracy, for example...
EFF is the Voice, We Are the Angry Mob!!! (Score:2, Interesting)
Watch EFF attorney Jason Schultz tear the roof off in the new documentary, ALTERNATIVE FREEDOM. Maybe you will learn something or be able to show your friends and then we can all make sure digital rights are always kept in mind...
Also features Dangermouse (of Gnarls Barkley), Lawrence Lessig, Richard Stallman...
Check it out:
http://alternativefreedom.org/ [alternativefreedom.org] [alternativefreedom.org]
Please - help me suggest EVERYTHING! (Score:2)
I hereby suggest "doing things with other things".
Wait, I can fix this (Score:2)
I'll start:
"Voice communications systems (mobile and stationary, personal and corporate and public) can stand a lot of improvement. But current technology just needs a few tweeks to make significant progress. Improved signal filtering for one; more integrated electronics; better shielding; water-proofing; better user interfaces in general; smaller packages that integrate with clothing a
correction (Score:2)
If america manages to succeed in it's apparent crusade to heavily restrict all forms of software development (not just FOSS), then the US will find itself rendered irrelevent by developers in third world countries, India, africa, China, and good old Blighty (where I reside), to name but a few.
Such developers, myself included, will just carry on, and ignore the rantings of the US while they paint themselves into a corner.
Sometimes I wonder if the parties on b
The EFF? Oh no. (Score:2)
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Re:But... it's free. (Score:4, Insightful)
Two important points here: 1) patent trolls are evil leeches on society and 2) set up an LLC to protect your personal assets from lawsuits based on your professional works.
-Rick
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You mention the patent holder as a patent troll. That could be, but what if its not? What if its a legitimate company wanted to protect it's intellectual property? Maybe it has something new no one has implemented yet? The patent they hold will allow them, for a certain period of time to put their software to work and establish themselves in the market.
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And if you come up with the idea on your own, then discover that someone else has patented it when they sue you for everything you've got?
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Cheers.
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Here, see the source of the law Article 1 section 8 of the U.S. Constitution [cornell.edu].
You are right, it was a stupid question, but only because you failed to do any research to learn about copyright and patent law.
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> Because patents exist to provide the creator of a work with an "exclusive right" to their creation.
>
> Here, see the source of the law Article 1 section 8 of the U.S. Constitution.
Which begins:
To promote the progress of science and useful arts,
>
> You are right, it was a stupid question, but only because you failed to do any research to learn about copyright and patent law.
>
No, he simply READ the relevant portion of the document in question.
Re:But... it's free. (Score:4, Interesting)
Companies don't patent things 'to make money', except indirectly: the primary use of patents these days is to keep new competitors out of the market, and free software is the worst kind of competition to have, since it doesn't cost anything. In any developed market, odds are all major companies will have patent cross-licensing deals, so patents don't affect them, they only affect new competitors that want to join the fun.
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Exactly. The original idea behind patent law was to encourage innovation. I fail to see how this use is doing so. As such, patent law desperately needs a complete overhaul if it is to carry on even a facade that it's helping the general population.
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1) Someone patents something. (Even though there's prior art)
2) FOSS Person doesn't check patents, because he knows he's doing something that's obvious and has been done before.
3) FOSS Person writes a program violating patent that should never have been issued.
4) FOSS Person gets sued by commercial entity that holds the rights to the obvious patent, and loses because he doesn't have the resources to fight it in court.
Stupid patents should not get granted. I
Re:Soo... (Score:5, Interesting)
There is a difference between "not done yet" and "non-obvious". The non-obvious leap is something where even if you knew about the problem you wouldn't have likely found the solution.
Take LZW for example, it's a rather straightforward addition to LZ78. In my books any competent comp.sci student would try that too. It's obvious. By the same token, it wasn't obvious how to get MP3 like efficiency 20 years ago in encoding audio [given that the state of the art back then was ADPCM, CELP and u-Law].
Most OSS developers couldn't implement an MP3 codec [hence the lack of options in choosing such a lib] but most could implement LZW, specially when given LZ78.
Tom
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The timing of such things also comes into play at times.
While some patents may seem obvious in retrospect, many of the so hated software patents were come up with before it was so obvious and at the time was actually something novel... of course in the internet age the amount of time from novel to common place to old news is rather short.
It would be a different story if the patent holder a
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To use the LZW cases there really isn't any missing link. Basically LZ78 is a dictionary matching algo for compression where it builds up strings of previously seen data and then replaces them with indexes. LZW is a modification where you preload the table with all byte values removing the need for escape sequences [since there are no literals anymore]. LZW is an obvious adaptation to LZ78 and any serious pra
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Tom
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You are allowed to use any patented idea for your own personal use. If someone patents a type of swing set and you go and build one in your back yard that is fine.
Is it fine if you let the kids down the street use it. Probably so.
What is illegal is selling the swing sets.
Free as in beer software could fall into the for my own use or education category of patent law.
What everyone is forgetting is this isn't just an issue for FOSS but frankly for every software vendor.
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The very idea of the a patent is to make the knowledge public so that people can learn and benefit from it while offering the creator commercial protection.
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The only way the US government is proceeding along this globalism path without total economic collapse right now is the repatriation of already exported greenbacks,coming back in the form of trade for further IOUs (the economy is already borked from that right now, no fix for it really). When that stops, and it mo
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So no, the population being "annoyed" with you isn't enough to fight off an organized military (and by the way, the Iraqis are getting slaughtered, it's only the sheer numbers of them vs. us coupled with our humanitarian "don't fire unless fired upo
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There is really no good way to test triviality.
Patents are meant as a "lesser evil" (monopolies are considered bad) to promote ideas that help society. So the real question is, do software patents indeed increase the amount of good ideas more than they harm society by creating monopolies and raise the barrier to software developm