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Reforming Software Patents with 'Marking' 175

sakul writes "Came across an article in the Stanford Law Journal that proposes 'marking' patented software to make the patents obvious to the public and to force large companies patenting software "to play by the same rules as holders of other kinds of patents." Interesting but technical read. Could this be a solution to some of the ever growing problems with software patents?" (Stephen Lindholm, the author of the paper, has provided a link to the paper itself, as well.) On the same topic, karvind writes "Gavin Hill, a film graduate, has produced and directed an interesting animated film on How Software Patents Actually Work. It's explaining the dangers of software patents and how they affect you and your business."
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Reforming Software Patents with 'Marking'

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  • The Conclusion (Score:5, Insightful)

    by Flywheels of Fire ( 836557 ) on Wednesday April 20, 2005 @12:42PM (#12294111) Homepage
    This article [google.com] argues that software patents could at least be brought in line with other patents by strengthening the marking requirement. Software patents are largely unjustifiable in the absence of marking.

    One might object to the arguments presented in the second section of this paper as empirically unsupported--after all, the plural of "anecdote" is not "data." The rejoinder is that a half-billion dollar verdict is more than a mere anecdote,204 and the plural of these "anecdotes" is a shameful abomination. The burden is on the proponents of the current software-patenting regime to point out where the billions of economic gains can be found.

    • Re:The Conclusion (Score:3, Informative)

      by AKAImBatman ( 238306 ) *
      Mod parent up. After reading the paper I was left to scratch my head at the conclusion that "marking software is largely ineffective", yet we should "mark software to bring it more in line with physical invention patents".

      The author does an excellent job shedding light on the difficulty of "process" and software patents, but his solution leaves much to be desired.
      • Re:The Conclusion (Score:3, Insightful)

        by dgatwood ( 11270 )
        It will be almost completely ineffective, not because it isn't a good idea, but because statistically most software patents are either for technologies that have never shipped in a working product or shipped in a working product that no is longer sold. For example, who here has ever even -seen- a piece of software written by Compuserve (GIF)? They wrote the software, patented it, said everyone could use it, then changed their minds.

        Compuserve was dying as an ISP and was trying to prop itself up. Nobody

      • Re:The Conclusion (Score:3, Insightful)

        by ajs ( 35943 )
        The section on patent poaching alone should make frequent readers of Slashdot want this move. To quote, "Ideally, this reform proposal would put an end to litigation by patent owners who exit the software market, wait many years, and then sue the leading innovators."

        Can you think of a company that would try such an underhanded tactic as dropping out of the software market only to then sue those who lead that market...?
  • by nizo ( 81281 ) * on Wednesday April 20, 2005 @12:42PM (#12294116) Homepage Journal
    ...the Stanford Law Journal that proposes 'marking' patented software...

    I figure if dogs can use this method to demarcate their territory, why can't people? So now the question is, will Bill Gates mark each package himself, or will Balmer get to do it too? It seems like this job would be way more than any single person can handle.

  • Here's an idea (Score:5, Interesting)

    by zymano ( 581466 ) on Wednesday April 20, 2005 @12:48PM (#12294181)
    Why don't the inventors of early languages ,computer and IT technology just patent everything and sue everyone. Then the courts will take on the matter.

    Kind of like 'burn everything down' idea from Vietnam.

    If the system is bad and allows abuse then this one way to kickstart something new.
    • Re:Here's an idea (Score:3, Informative)

      by angle_slam ( 623817 )
      Because they can't. It has to be patented within one year of first public disclosure. Obviously, C, C++, and the like have been out there for more than a year.
      • So what? Software can't be patented either, yet there are tons of software patents. Just go ahead and apply for patents on the disclosed software.
        • Software can be patented. Just because you think they shouldn't be patented doesn't make it true.
          • That doesn't particularly bother me. What bothers me is that the US Supreme Court's thinking doesn't make it true either. Software patents are illegal in the US, but there they are!
            • What bothers me is that the US Supreme Court's thinking doesn't make it true either.

              That's just a fact of the U.S. legal system--if the Supreme Court thinks it is legal-->it is lega.

      • If they are European, then they cannot patent software - yet. (Or do some countries allow software patents already?) Even then, in Europe a patent must be filed before public disclosure. The US is one of the few (only?) countries that allows patenting after disclosure.

        Though your point still stands, those old things are not patentable.

  • good animation. (Score:3, Informative)

    by AltGrendel ( 175092 ) <ag-slashdot@eGAUSSxit0.us minus math_god> on Wednesday April 20, 2005 @12:49PM (#12294185) Homepage
    The animation is a good one to forward to any one you've been trying to explain the software patient problems too that still doesn't get it.
    • Yeh I had already read a lot about it, but hadn't thought of it in too much detail or really digested the facts. After viewing that animation, the fundamental difference between copyrights and patents as applied to software, and what software patents would mean to the industry is very clear. Well done and informative :-)
    • Well, the animation would have been a good one if I hadn't been constantly distracted by the idiot narrator mispronouncing "patent" as "paytent", "Linux" as "Line-iks", and "GNU" as "G.N.U".

  • so solution at all (Score:5, Insightful)

    by ammoQ ( 454616 ) on Wednesday April 20, 2005 @12:52PM (#12294220)
    The greatest problem are submarine patents which do not even exist as widespread software products, so how could marking help?
    The other problem are patents that lock proprietary file formats and communication protocols; marking these software products doesn't help to make software interoperable, the opposite is true.
    • "The greatest problem are submarine patents which do not even exist as widespread software products"

      I often sit around drinking bottles of water while working on my submarine and think quietly to myself: "I wonder what patents would I be infringing upon if I made this a consumer product? This submarine patent problem is the greatest problem in the world today."

      ;) :)
    • The other problem are patents that lock proprietary file formats and communication protocols; marking these software products doesn't help to make software interoperable, the opposite is true.

      I think the problem is that companies don't have any incentive to support software interoperability. In fact, they perceive disincentive as interoperability appears to have the potential to lower their software sales. We could mess with the free-market system however and legislate interoperability. Theoretically,
      • > We could mess with the free-market system however and legislate
        > interoperability.

        Nope, there is a much simpler solution. All we need do is pressure our congresscritters to pass a law saying TAX dollars can't be expended on software that writes a closed format. But it wouldn't even have to be the government, any dozen of the Fortune 500 could mandate it in their purchasing manuals and the practice would end overnight.

        Bottom line: users don't care because they have yet to understand the problem a
        • Writing legistlature saying tax dollars can't be spent in that way is nearly the same as legislating interoperability - but I'd be against that since it might mean that students don't learn what's really going on in the marketplace, as the marketplace stands today.

          Fortune 500 companies deciding that would just be the free-market system working its wonders. However, they don't have any incentive to do that since they still see the closed system as having the best available products.
          • > Writing legistlature saying tax dollars can't be spent in that way
            > is nearly the same as legislating interoperability

            Not at all. Not any more than the old requirement for POSIX was legistlating interoperability. It just means the government would be saying interoperability IS important enough to put in a bid spec, same as requiring bibbers be bonded, supply a warrenty, or any other purchasing requirement. Does a bid request requiring the ability to read/write DVD+R mean a government mandated f
  • Why mark more? (Score:2, Interesting)

    by xiando ( 770382 )
    All the software I use is clearly marked (with the GNU GPL..) in the documentation, readme-files, about-boxes and so on. I would hate to have a truckload of popups telling me about software patents distracting me from using the software for productive things. I do not see how such marking would be anything but majorly annoying for commercial software also. I could accept more patent markings it it was limited to the source code, though, a comment in the source saying "here we use patent foo" would be accept
    • though the GPL is a license which invokes copyright, it's not a patent...

      Comments in the source about patent use just don't work, especially for products where you don't have the source.

      I read this as being along the lines of "products should document clearly ( in manuals, marketing material, etc ) what patents they are protected by", just like say, your car, TV, VCR, DVD player, even lawn mower : pick up a manual to any of them, you'll see patents ( both pending and otherwise ) listed fairly prominently. I

  • I disagree (sorta) (Score:4, Insightful)

    by binaryDigit ( 557647 ) on Wednesday April 20, 2005 @12:54PM (#12294239)
    From the article :

    This paper starts from the proposition that software patents are, practically speaking, hidden away in the recesses of the patent office and practically impossible to find. It proceeds under the first economic principles of the patent system to argue that there can be no justification for patenting software when the public has no knowledge of the patents' scope or technical disclosure. It concludes by observing that patent law already provides a mechanism for disclosing patents to the public, the marking requirement, and proposes putting teeth into it so that holders of software patents would be required to play by the same rules as holders of other kinds of patents.

    I think that the problem many have with software patents is not that they are hard to find, but rather that it is so easy to patent almost anything, regardless of how trivial/obvious and many times without regard to prior art. Marking may help you from getting tripped up by an existing patent, but if the basic premise is that the majority of software patents are evil, then marking just makes the evil easier to find.
    • Actually, the real problem is the fact that if some rich company brings a lawsuit against you or your small business using a patent that never should have been granted, YOU get to go broke trying to defend yourself against it. Even if you win the case, you'll go bankrupt, which makes fighting the case pointless.

      The entire civil judicial system in this country needs to be changed to loser-pays-all format so that defendants vindicated in the courtroom don't still lose in reality. Lawsuits are used way too
  • Interesting Enough (Score:4, Interesting)

    by Jeremiah Stoddard ( 876771 ) on Wednesday April 20, 2005 @12:54PM (#12294244) Homepage Journal
    "Marking" software patents would be a start to solving the major issue of us not knowing what is patented or not, but it doesn't help those of us who aren't planning to buy the software to see those markings... Also it doesn't solve the issue of the incredible number of software patents covering nearly anything you can do in software - and considering the fact that technology changes so quickly, if a patent on software were to exist that didn't stifle innovation it would have to be of such short duration that the patent owner wouldn't benefit from it anyway -- developers would just wait out the expiration date. On the other hand, we could at least limit software patents to those things that really aren't all that obvious, but the patent office wouldn't know recognize what is innovative anyway, would they?
  • by Weaselmancer ( 533834 ) on Wednesday April 20, 2005 @12:55PM (#12294251)

    "This paper starts from the proposition that software patents are, practically speaking, hidden away in the recesses of the patent office and practically impossible to find.

    I don't see the problem. They're clearly marked in the basement, right by the sign that says "Beware of the Leopard."

  • Acrobat (Score:2, Insightful)

    by Anonymous Coward
    It already takes half an hour for Acrobat to display its list of patents when it loads.
  • by stubear ( 130454 ) on Wednesday April 20, 2005 @12:59PM (#12294293)
    ...and it's not killing off patents either, software or otherwise. Patent holders should be required to demonstrate their patent, especially if it's software, AND the patent holder must utilize the patent in one or more of their software applications or services built on software applications. Amazon is welcome to patent the one-click web shopping cart but they must utilize this on their website, for instance. However, companies like Eolas which exist solely to collect patents cannot enforce them because they offer no software or service which utilizes the plug-in patent. Only when you do this will marking be a useful tool to identify what is patented. if submarine patents are allowed to exist, and companies are allowed to exist solely to collect patents, marking is going to be of no use to anyone.
    • by Bellyflop ( 681305 ) on Wednesday April 20, 2005 @01:15PM (#12294431)
      I don't think forcing them to use the patent is a good idea. It gets rid of research centers, places like Xerox PARC (not that they participated in this) , that exist to invent things and patent them, but don't have the production capability (or perhaps desire) to put their patent in product out on the market themselves. Instead, they rely on selling the rights to someone who can do it for them.

      I think most of our issues would be solved with patent reform and a wide-scale review. The people granting the patents just need to be better at discerning what is patentable and what is not, or perhaps the court system/legislature should make it more obvious to them.
      • Perhaps research centers could be granted exemptions though the rules woudl work slightly different for them. They still need to offer working proof of their software. However, since they are not required to utilize their patents in software or services they would be required to offer their patents in an undiscriminatory fashion. This is mostly left up to the research center to facilitate but by undiscriminatory I mean if they offer the patent to small businesses at x value, they must offer it to all sma
      • by ComputerSlicer23 ( 516509 ) on Wednesday April 20, 2005 @02:04PM (#12294860)
        I'm thinking the parent has it slightly wrong, and your interpretting it even more wrong...

        When you say "Xerox PARC" as an example of an R&D place. Uhh, they built a machine with a mouse. They built an Ethernet card. They had working networking. They are an example of everything that is right about R&D. They did good stuff. It's really too bad Xerox didn't think outside of the realm of copiers. They pretty much owned the computer market 5-10 years before it existed.

        I think the parent to your post had it conceptually wrong in terms of "product". I think he should modify that to be "once they have a working proof of concept", they should be allowed to patent it to protect themselves while they turn the concept into a product (I think this is the one legitimate use of patents, to protect smaller companies from larger ones while they are turning their concept into a product).

        The problem with software patents are that some of them are just stupid. Anything that is "I'm automating something done by hand with a computer", shouldn't be patentable. It is no longer "novel" to automate any kind of process thru software. So everyone who patents essentially a business model thru software (my software does X, and I re-sell X as a service so I'm given a government granted monopoly on the concept of automating service X). I know there were a couple of guys who did this for automating importing and exporting. It automatically filled in some gov't forms. Got a patent, essentially tried to run every one of his competitors out of business because they used computers for some form of automation.

        The other problem with software patents, is that 17 years (or 20 years from application date), is just assinely long in terms of computers. Just think if someone had patented the "mouse" when the Mac came out. That would mean you'd have had bought their mouse up until Jan of 2001 (using the 17 years from application rule).

        Conceptually no one will get to implement "one click" purchasing until what, 2017 (I think they applied for the patent in 1997)? Geez, that sounds like a fair amount of time. Lets see, how much has the computing world advanced since 1997? How much since 1987?

        Just think if HTML, or a Web Browser were patented so that we would have to nicely ask permission to use such concepts? It'd badly stifle innovation. If they we're talking about letting you have a patent that could protect you for up 20 years, but you only got a gov't granted monopoly once you've productized it for say 2-4 years. I'd say that's a bit more sane the then current system. It could probably still be "gamed" to gain an unfair advantage, but it sure would be nice to see fast moving markets be relatively patent free.

        Kirby

        • are an example of everything that is right about R&D.

          I'd say Xerox Parc was the textbook example of how *not* to do R&D! Technical excellence with 0 market followthrough. If the same greta minds had been working at companies with a clue, we might have had those same technologies in the market a decade earlier.

          This is just one more reason why 17 years is too long for software/process patents. Imaging if Xerox had patented everything invented at Parc, then sat on those patents. Ugggh.
          • That was a problem with management at the company, not anything wrong with the Research people themselves. Several of the research people (See Bob Metcalf? The guy who founded 3Com and invented Ethernet), left the company precisely because they knew the management of the company had no clue what to do with the new stuff.

            Xerox couldn't see past the end of their domination in copiers. My Dad worked for Xerox (not for PARC). It was just a culture thing there. If it wasn't a copier they just didn't have

        • I don't think that there's anything wrong with a software patent or a business model patent. The patent office just needs better guidelines about what ought to be a patentable idea and what shouldn't be. I agree, obvious things like automating a hand-done task with a computer shouldn't be patentable ideas. That's just silly. But that's the problem is the patent office - they can't tell silly from innovative.

          As far as the length of patents, I don't see any reason why software should be any different t
          • The same reasons why the FCC shouldn't regulate an emerging telecom industry (like VoIP), is relatively similar to why patents shouldn't hold up emerging markets.

            Personally, I think patents should be shorter period. However, I think for software that's doubly true. The role of patents and copyright are to "to promote the Progress of Science and the useful Arts" (quoted from the US Constitution). I'm fairly confident that more patents are currently stifling innovation then promoting it in the area of so

          • obvious things like automating a hand-done task with a computer shouldn't be patentable ideas. That's just silly.

            Software is nothing but a calculation. Not only can ALL software be run by hand, but any software can be run (slowly) in pure thought.

            if I find a novel/better way of finding approximate solutions in polynomial time to NP complete problems, I ought to be able to protect it

            So you want to be able to patent math. And if I use your new patent and I carry it out inside my head and get that soluti
            • Software is nothing but a calculation. Not only can ALL software be run by hand, but any software can be run (slowly) in pure thought.

              Agreed - but I'm not talking about the software here - I'm talking about the process. Some processes are patentable and probably ought to be.

              So you want to be able to patent math. And if I use your new patent and I carry it out inside my head and get that solution, have I violated your patent? Were those thoughts prohibited by law? Thought crime?

              I'm not sure where
              • Some processes are patentable and probably ought to be.

                New and nonobvious physical processes. Not mental steps and logic and math.

                I want to patent some parts of math. It's possible right now in the patenting of chemical processes.

                No, that's not a "patent on some parts of math". You get a patent on discovering and teaching a physical process and harnessing the forces of nature to acheive a physical result. Refining ore or manufacturing a drug or whatever.

                Any math you come up with while you're at it or
                • New and nonobvious physical processes. Not mental steps and logic and math.
                  Can you provide some examples? Mental steps are indeed patentable - chemical processes start as mental steps and equations on paper. And that is patentable.
                  A patent on LZW compression is a software patent. You can carry out the 'invention' mentally. I am saying it is absurd to sugest that someone can break the law while suitting motionless and just thinking and actually preforming the patented compression.
                  Ok, so we agree that
                  • Mental steps are indeed patentable - chemical processes start as mental steps and equations on paper.

                    Sure it's patentable, but refining ore into metal or manufacturing a drug is *not* a mental process. Not matter how much you *think* about it you can never refine a single ounce of ore into metal nor produce a single molecule of drug. They are physical processes. (Potentially) patentable physical processes.

                    A patent on LZW compression is a software patent...
                    Ok, so we agree that it's absurd. I didn't say i
                    • Sure it's patentable, but refining ore into metal or manufacturing a drug is *not* a mental process. Not matter how much you *think* about it you can never refine a single ounce of ore into metal nor produce a single molecule of drug. They are physical processes. (Potentially) patentable physical processes.
                      That's definitely true. But, just the same, no matter how much you think about it, you're not moving a single electron through a switch, or printer head or anything of that sort either - it's the softw
              • by Alsee ( 515537 )
                More on your "Turing complete" comment...

                Mathematics is indeed turing complete. Any software can be directly translated into an identical pure mathematical function with any input to the sofware as parameters/values to that function. The final value(s) of that pure math mathematical statement will be identicial to the output of that sofware.

                In fact some mathemtitians have been doing exactly that, converting (*small*) software programs into the identical math statements and running that math statement thro
    • by Concern ( 819622 ) * on Wednesday April 20, 2005 @01:38PM (#12294629) Journal
      Have you ever written any code?

      How many patents did you violate in order to write it?

      How do you know?

      How can ANYONE possibly EVER know?

      And even if by some miracle you did know today, how will you know tomorrow, when another 1,000 patents have been granted?

      You have no answer to these questions. I know that in advance, because these questions are impossible to answer.

      It amazes me that anyone is still confused about this.

      Software patents are a ridiculous, unworkable farce. The only reason they "work" today is that they are almost universally ignored, even (or especially) by their supposed proponents.
      • One could easily ask this of many inventions. There are going to be some obvious and some not so obvious violations in both areas but this does not mean you scrap the entire idea of software patents. As for "how do you know", you do the research. Granted the USPTO, and patent offices of other countries you wish to distribute your software, should provide better search capabilities for their listings but that's all part of solving this greater problem.
        • As I predicted, you were unable to answer my questions.

          Instead, you basically said, "hey there may be problems with other kinds of patents too."

          Patenting software is distinct from patenting other kinds of inventions, and we can get into why that is if you like. The exercise is rhetorical, however I will be happy to indulge you.

          If you cannot make the system work, it frankly doesn't matter whether you should try.

          You only said, "you do the research."

          How do you do the research, stubear?

          Do you really belie
        • As for "how do you know", you do the research.

          Really? Software patents are extremely hard to read. To properly read a software patent you have to know both software and patent law, and you also have to know the special obscure language the software patents are written in.

          TFA states that the cost of an informed opinion on possible infringement on a patent costs 20-100,000 US$. And there are at least 100,000 software patents.

          Let's do some really simple math. For example let us assume that you have a


        • The problem with software patents is that there are far too many methodologies that either draw on, or depend on far too many other methodologies. Before software patents, you could take an idea and make it better. This was good for the consumer, because it accomplised two things- it makes it more difficult to stagnate, locking customers into an implementation that is substandard.

          Let's say that someone develops a lightweight app that does something specific, but does it very well. Too bad...the customer ca
    • Great, lets encourage a system where anyone who can demonstrate a technology can lock out the rest of the world from using it for a ridiculous amount of time.

      Yeah, that'll make society a better place.

      How about limiting patents and copyright to the right to derive profit from the use of an idea or work instead of the right to also restrict its use? And how about being more creative about how we make sure that this is implemented in a way where the producer doesn't pay so many IP rights holders that profit
  • Copyright 1984-2004 Adobe Systems Incorporated and its licensors. All rights reserved.

    Protected by U.S. Patents 4,667,247; 4,837,613; 5,050,103; 5,185,818; 5,200,740; 5,233,336; 5,237,313; 5,255,357; 5,546,528; 5,625,711; 5,634,064; 5,729,637; 5,737,599; 5,754,873; 5,781,785; 5,819,301; 5,832,530; 5,832,531; 5,835,634; 5,860,074; 5,929,866; 5,930,813; 5,943,063; 5,995,086; 5,999,649; 6,028,583; 6,049,339; 6,073,148; 6,185,684; 6,205,549; 6,275,587; 6,289,364; 6,324,555; 6,385,350; 6,408,092; 6,411,730; 6,
    • by optimus2861 ( 760680 ) on Wednesday April 20, 2005 @01:24PM (#12294520)
      By contrast, my Dell Latitude laptop computer, a tangible, physical device, the outgrowth of many years of research & developement in microchip and printed-circuit technologies, churned out by some mass-producing factory has, four, count 'em, four patent numbers listed on the bottom. Sure, there's probably a bunch more inside, but when a piece of software that lets you read a document has 30+ patent numbers and the computer that runs it has 4, something's a little bit off...
    • by null etc. ( 524767 ) on Wednesday April 20, 2005 @01:49PM (#12294709)
      They need to take this one step further:

      "You've just used Adobe's U.S. Patent #5,185,818! Please remember, if you see this feature in another software package and are the first to report it to Adobe, you will receive a free copy of Photoshop CS 10!"
      and

      "Have a good day! You've used 278 of our patents 9,386 times today. Thank you for helping us bankroll our Intellectual Property lawyers. Our ability to innovate is directly dependant upon our ability to patent and sue. Also, if you're the owner of a Nikon DX5000 camera, please remember to call Nikon USA and demand they open up their proprietary RAW format!"

      and finally

      "Thank you for registering your Adobe product. Remember, only communists don't like patents!"
  • Does this mean that MS Office will require a 17th CD to hold all the info?
  • It seems to me that this really doesn't solve the software patent problem at all. The major issue of patents being granted for trivial/previously implemented ideas will continue. "Marking" seems to be just an easier way to enforce software patents.

    In fact, until the flawed underlying process of patenting software is fixed in a more permanent way this could actually make things worse. Right now it is very easy for programmers to simply ignore patents that they find ridiculous on the basis that the owner wou
  • by Concern ( 819622 ) * on Wednesday April 20, 2005 @01:04PM (#12294340) Journal
    There is only one way to reform Software Patents.

    That is to abolish them.

    Software patents have never worked, and can never work. There is no way they can be made to work.

    Marks do nothing to solve the absurd problem of scale. No one can ever assimilate the patent database, or even keep up with new additions, no matter what reforms were enacted. Anyone who tells you their code is "legal" with respect to patents is a bold-faced liar. Every line of code is a ticking patent timebomb.

    The very term is just a code word for "Barratry."

    They are a legal anomaly and a practical absurdity. They "function" only in that they are almost entirely ignored by those they are intended to govern. In short, they are a very expensive, very destructive farce.

    In theory they were meant to be a tool for rich people to shake down poor people, but they even backfire at that, since small "IP" companies can shake down giants with impugnity without being counterattacked, as long as they have no products of their own.
    • The owners of intellectual property have created a mass of strange and new kinds of property. There can be only one real long term solution.
      PROPERTY TAX.
      Yep, let the company assess a value to each patent and charge the holder 1% PER YEAR, however the max damages for violating this patent can only be its value. I can just feel the national dept melting away.
      not sure wether this was sarcastic
  • This does not solve the major problem.
    The major one is not seeing a good feature in a product and violate a patent in trying to reproduce it. The big problem is trying to implement some [often trivial] feature and accidentally break a patent in a software which we don't even know exists!

    For example if I had an ecommerce site, I would probably have implemented a one-click buy option even if I haven't seen amazon before.
    • "Marking" patents, hmmm??

      And if we put a sign on every car that says,
      "This is a car.", I'm sure car accidents will go way down too.

      You're not solving a problem, you're just hastening the inevitable collapse of the software industry that software patents, as they exist today will cause.

    • I would probably have implemented a one-click buy option even if I haven't seen amazon before.

      Supposedly, this makes no difference when patents are involved, which makes the distinction between copyright and patent that much more absurd. I thought you couldn't patent vague general ideas, only implementations of those ideas?

      How many times have you watched a Fark photoshop contest in which people submit the same concept at nearly the same time? Who is it that gets to apologize and retract? The person wh
  • by scum-e-bag ( 211846 ) on Wednesday April 20, 2005 @01:11PM (#12294385) Homepage Journal
    Sure... I can just see it now...

    Looking at my menubar and instead of seeing

    File/Edit/View/Go/Bookmarks/Tools/Help

    I see

    Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only File/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Edit/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only View/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Go/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Bookmarks/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Tools/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Help

    Lets really bloat our systems...
  • by mmeister ( 862972 ) on Wednesday April 20, 2005 @01:20PM (#12294478)
    There are many, many problems associated with software patents.

    I never see much mention of the fact that a software patent extends for 17 years makes it equivalent to 100 years in another industry. I think this will become more of a problem as other industries accelerate in production.

    Think about the state of computers 17 years ago (1988), who's patents are only now expiring. We're talking pre-Internet.

    In general, patents are supposed to encourage innovation. But that was never needed in the software industry. Patents are now used as corporate weapons and nothing more.

    The big guys have thousands of patents in their arsenal and you're likely infringing on one of them unless you can PROVE you're not. the result -- the little guys (the innovators) are the losers and ultimately, the entire industry becomes the loser as innovation slows down.
    • Generic terms are allowed and no specific technical mechanism is ever described because the patent office doesn't understand computer systems yet. These kind of patents should be invalidated as quickly as possible.
    • It's currently impossible to determine whether a new idea is patented or not. Marking would do a lot to help this. So would registering products under the patent number for easy cross referencing.

    I came up with a neat idea the other day for a bit of software, and then I thought how on Earth

    • But why bother building it if I'm not going to get paid?

      Why do you think no patent equals no pay? That's a piece of illogic that the patent lawyers like to push without evidence.

      Say I have the idea of opening a new hardware store in a town previously without a hardware store. Somebody else sees I'm making money, thinks it's a good idea and so opens a competing hardware store.

      I had the idea first and the store required a big investment, do you think they should be legally blocked from competing with

  • Quick (Score:3, Insightful)

    by RealityMogul ( 663835 ) on Wednesday April 20, 2005 @01:23PM (#12294510)
    Somebody patent a process for identifying the patents used within a particular piece of software.

    Don't laugh - you know MS saw this article and has somebody working on a proprietary format for storing this information.
  • Interesting movie, but I've never heard "patent" spoken like that.
  • ...it was pronounced "pay-tent".
  • Hybridize to unmark (Score:3, Interesting)

    by UnapprovedThought ( 814205 ) on Wednesday April 20, 2005 @01:32PM (#12294580) Journal

    An analogy with the real world:

    Take the frame of a glider, the wheels of a bicycle, the engine of a car, but made of a lighter metal, the propeller from a ship and a bird's wing.

    The result: the "aeroplane," a new patentable invention that the glider builders, bicyclists, automobile companies, ship builders and birds cannot charge you royalties for.

    OK, so do the same with software:

    Combine a piece here, a little piece there (e.g. two hashes). Suddenly nobody's patent applies to you because it looks like everyone's and no one's work at the same time.

    Whatever procedure they use to "mark" the code can be used to unmark it, because it's all just modifiable information.

    "Ha! There! I've written my name on the board. Now it's mine, all mine."

    "Hey wait, what are you doing erasing that?"

    A sufficiently hybridized program will succeed in defeating any scheme for marking it, and if they attempt to do this through almost impenetrable obfuscation then no one will want to use their hopelessly unmaintainable code anyway.

    Hmmm... maybe this explains something about the apparent insecurability of some M$ code?

  • by NigelJohnstone ( 242811 ) on Wednesday April 20, 2005 @01:34PM (#12294596)
    "Kenneth Arrow's information paradox, which describes the problem faced by an inventor selling an idea. Anybody contemplating the purchase of this idea will, naturally, want to know what it is. But if the inventor reveals his idea, he no longer would have anything to sell."

    He could implement it and show its advantages and sell it on its advantages.
    Recall Fox softwares 'Rushmore' database technology. They showed the benefit without revealing the technique.

    Of course he, the inventor, must be able to implement it, or how else could anyone else?! Also he must be able to show advantages or it has no worth.

    • It's in the nature of software that you can release the product without explaining how the internal algorithms work.

      So there is no paradox for software, he can both show it and not reveal how the black box works inside.

      2 cent opinion.
  • by nuggz ( 69912 ) on Wednesday April 20, 2005 @01:36PM (#12294621) Homepage
    I've never heard of a requirement to mark patents on the product.

    I'm sure this will really mess up nanotech patents and business method patents.

    I think we should chemically etch the appropriate patent numbers into the legal staff first.
  • Jesus, I'm about halfway through this paper, and I'm pretty sure the twist at the end is that the whole thing was written by a very preminiscient Jefferson.
  • by trurl7 ( 663880 )
    Speaking of animated films, I think there's an opportunity here for a new direction in anime:

    1) The Schoolkids genre - our hero is a high school boy with mystical powers. He is periodically posessed by the spirit of a patent examiner who can defeat software patent applications by pointing out prior art.

    2) The Mecha genre - to get a patent accepted, corporations must defeat their opponents in a fight with giant robots. The hero belongs to an elite Anti-Software-Patent team that uses superior technology t
    • 7) The Fighting genre - this one should be obvious. Like the Mecha genre, except that battles are fought between martial artists. The hero is a young punk who does not believe in all the martial arts codes - he is a street fighter, there to challenge the sanctity of the software-patent-sponsored "traditional" martial artists.

      Nah, the hero is a young open source developer who gets sued for patent violations, and then learns martial arts to fight off the evil agents of the patent mafia, using his hacking sk
  • by alispguru ( 72689 ) <bob.bane@ m e . c om> on Wednesday April 20, 2005 @01:56PM (#12294782) Journal
    ... is fine by me. I especially like the requirement that marking would put on the patent owners to "police their licensees". According to the FA, if B licenses a patent from A, A must watch B and insure that when B sells something using A's patent, B marks it with the appropriate patent numbers. If A lets B get away without marking, A loses its rights to enforce the licensed patents.

    Currently when the big guys cross-license their patent libraries, usually no money changes hands and they don't change how they do business - it's a CYA formality used to make life difficult for businesses without big libraries. If marking were required, licensees would either have to:

    read the libraries and pick the patents that they actually used

    mark every product with "May contain technology based on ... 10,000 patent numbers"

    risk invalidating patents licensed to them, and getting sued into oblivion by the owners

    Keeping a licensed patent in force would cost something if marking were required. Keeping a lot of patents in force would cost a lot. What's not to like?

    • harder for who? (Score:2, Insightful)

      by kebes ( 861706 )
      The problem is that the scheme you describe is fairly easy for big companies to implement, and impossible for small-time inventor/programmers to implement.

      One of the main objections to the current patent system is that it has a large barrier to entry. This makes it difficult for the "small guy" (which includes most F/OSS projects) to play with the big-boys. The small guy has to pay all kinds of court fees, do extensive patent searches, and jump through all sorts of hoops, even if he ultimately wants to giv
      • One way to level the playing field would be to make the "May contain..." option above illegal. The reason for marking should be to let people know which patents are getting used - it's not useful to tell the consumer or potential reverse-engineer that "one of these 10,000 patents may be inside this product".

        If correct, explicit marking becomes a requirement, big libraries of software patents become less useful:

        If you license them you have to watch your licensees

        If you don't license them, and don't use

  • No patent should be granted for any computer algorithm if the same or similar idea can "discovered" by an industry-selected board of programmers and architects.

    Get the IEEE or ACM to appoint 50 computer engineers. One, two, or three engineers are assigned to each (non-obvious) software patent candidate that comes in. They receive only a desciption of the problem the invention addresses, but no details of the invention itself. They have 24 hours to propose as many solutions to the problem as they can. I
    • No patent should be granted for any computer algorithm if the same or similar idea can "discovered" by an industry-selected board of programmers and architects.

      WTF does that have to do with patentability? Before you reply using the word "obvious", read MPEP 2143-2144. Here's a start:
      MPEP 2143 [uspto.gov]
      Continue with the links at the bottom to read through the MPEP 2144. If you have not read and at least attempted to understand this text, you are not qualified to debate the topic of obviousness in the US patent

      • you are not qualified to debate the topic of obviousness in the US patent system.

        There is a fundamental disconnect here.

        We know the patent office is using a self-serving, legal definition of obviousness. We are saying that definition is garbage, as even a cursory examination of recent software patents [uspto.gov] will show.

        Patent lawyers claiming that software creators are not qualified to talk about it are missing the point. We are a helluva lot more qualified to talk about true obviousness in software than a

  • by cdrguru ( 88047 ) on Wednesday April 20, 2005 @02:05PM (#12294873) Homepage
    He obviously studied "software patents" in a very abstract sense and thinks they point to perceivable objects in the world. Things you could "mark" somehow.

    The problem is much closer to a chemical plant and its products. Sure, there may be a single patent on a product like a drain cleaner, but there can be hundreds of patents on the machines used to produce this chemical product.

    Most software patents that are really troublesome are not the products on the products themselves but patents on tools and techniques used to make the products. These are hidden away and no amount of "marking" is going have any benefit whatsoever on this sort of usage.

    Yes, I am listed as the inventor on at least two software patents. I think they are all silly, but today that is the price one has to pay - cross-licensing. You violate someone's patent and the defense is they are violating your's. So you cross-license and everyone is happy again. It is closely tied in with both the VC and legal communities, and until they go away software patents aren't likely to either.

  • by NigelJohnstone ( 242811 ) on Wednesday April 20, 2005 @02:06PM (#12294885)

    The paper mentionsthe IBM progress bar patent from 1990: Patent on progress bar [rolandstigge.de]

    Here's a screen shot from the Apple2GS (Actually its running on a GUS emulator becauses it way too old). AppleIIgs screen shot [apple2history.org]

    Notice the progress bar it displayed as it was starting up. Thats from 1983?

    That's a European patent.
  • In one word: Garbage
  • If I patent a machine for producing PBJ's, and you see the patent, are you allowed to copy my machine for your own personal use? or are you restricted from using the knowledge in my patent altogether? (disregard the possibility that armitron may be prior work)
  • by travler ( 88311 ) on Wednesday April 20, 2005 @02:27PM (#12295123)
    A lot of our laws especially concerning things that businesses have historically provided for the population are not geared towards how individuals behave but rather large business entities. So there is a sort of 'impedence mismatch' between certain sets of laws and how society is evolving. Intellectual property laws being one of those 'sets'.

    Historically large businesses produce goods which ordinary people then consumed.

    Now ordinary people are starting to produce goods for orther ordinary people (blogs/podcasts/software/web services/etc...). Thanks to modern technological advances you no longer need huge investments of capital to create, market, and sell things. I can market and sell all by myself thanks to the web. If my product is information-related odds are I can create it cheaply either by myself or with a small group as well.

    So while laws regarding copyright, patents, and trademarks work well for businesses that have access to large amounts of capital (what is 50k for filing a patent when it costs us millions to create/market our product) they work against the individual or less capital-intensive businesses.

    While personally I think all IP related laws need to be abolished (with the possible exception of trademark but even there I'm not 100% convinced) they definitely need to be made easier to deal with for smaller business entities that don't have ready access to lots of capital(aka money).

  • Don't allow software, algorithms, logic etc. to be patented in the first place. Make sure that existing patents can never be infringed by any software, algorithms, logic etc.
  • Hmmm, I'll think I'll start patenting:

    "A system for soliciting money and applying monetary incentives to induce political dialog on selected social-economic issues through elected officials".

    Then start the lawsuits flying against Lobbiests and Politicians. That will get their attention and prove our point.

  • Wow, there's so much misunderstanding of the parent's basic point. Guess people didn't read the source very far.

    The point is that by simply insisting that current patent holders obey the rules that other holders have to obey ("marking"), coupled with restoring the responsibility to defend your claim, or lose it, you make it impossible for the current sad state of software patents to continue.

    You don't have to chuck out the system, you just have to get it back on its original track. The rest will take ca
  • Here's what I think. Want to patent software? Think you're the greatest programmer who ever lived and your code is something that nobody has ever thought of before? Ok. Here is what I propose: Allow software patents under the following conditions: The person or company filing for the patent must pay a much larger fee than for other patents so that a special task force in the USPTO can research the stuff in-depth to make sure that it really is unique, non-obvious, etc. And you have to give the USPTO access t

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