Cato Institute Critique of Software Patents 242
binarybits writes "I've written an article for the free-market Cato Institute about how patents impede innovation in the software industry. It points out that people tend not to realize how vast the software industry is. It's not just Google and Microsoft; virtually every organization has an IT department producing potentially-infringing software. Organizations as diverse as J. Crew and the Green Bay Packers have been sued for patent infringement. It's crazy to expect all these organizations to worry about potential patent infringement. Hopefully the Supreme Court's Bilski decision will lead to new limits on software patents."
Excellent, but... (Score:5, Insightful)
do you really expect rational arguments in favor of the public good to be of any help against entrenched interests in this matter?
Re:Excellent, but... (Score:5, Interesting)
Even from that perspective, it might be of some use. I'm not always a big fan of the Cato Institute, but they're influential among free-market conservative politicians. When it comes to entrenched interests with lots of lobbyists, Cato is one of them, so them lining up on this side could be useful. Of course, it remains to be seen how strong the support is--- will Cato actively lobby against software patents, or just publish the occasional article?
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Hilariously wrong. Cato is a *libertarian* think tank. They have next to no influence, compared to the usual K-street actors (AARP, unions, industries of all kinds, trial lawyers, environmentalists, etc.)
Think about it: What libertarian policies have you seen Congress adopt recently?
- Alaska Jack
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Remember the Bush tax cuts? Remember the Cato-speared attempt by Bush to privatize Social Security? And who do you think is spearheading opposition to public health care at the moment?
Cato's got the ear of a whole lot of Republicans.
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Remember the Cato-speared attempt by Bush to privatize Social Security?
Was Social Security privatized? I don't think so.
And who do you think is spearheading opposition to public health care at the moment?
CATO is but one cog in the machines opposing socialized medicine.
Cato's got the ear of a whole lot of Republicans.
And those Republicans don't alway listen, whereas others who are not Republicans listen to CATO as well.
Falcon
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Libertarianism.... (Score:2)
Is a forest of intellectual ideas that the neocons stripped
for decorating their offices and then left the forest to rot.
The neocons stole libertarian rhetoric and boiled it down
to "tax cuts" and "Deregulating business".
As Ayn Rand would say the libertarians selling themselves to the republican party
"is like casting pearls before swine and not even getting a porkchop in return"
Even as a liberal I appreciate the value of an honest independent libertarian movement keeping
government honest.
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Re:Excellent, but... (Score:5, Insightful)
It's not really an either/or. Most classical liberals were in favor both of freedoms in general and modest social safety nets. When Adam Smith, Thomas Jefferson, etc., were railing against government, it was against the police-state style of government on the one hand, and distorting interventions into the economy like mercantilism on the other hand. They weren't against government using tax revenue to produce public goods, like roads, bridges, ferries, public fountains, orphanages, public schools, etc.
Re:Excellent, but... (Score:4, Insightful)
do you really expect rational arguments in favor of the public good to be of any help against entrenched interests in this matter?
Rational arguments that are logically sound and easily understood actually are of help in this matter.
No matter how powerful entrenched interests appear to be, their power is dependent upon a majority of the people tolerating or being ignorant of their bad behavior and its consequences.
Convince enough of the people, with sound argument, that they are being negatively impacted and they will raise hell until the situation is remedied.
Politicians may be bought and sold by the special interests but ultimately, if the people become angered enough to speak up and act, the pols do what their constituents demand. Why? Because they can't enrich themselves if they get kicked out of office.
There's a reason that the entrenched powers seek to control the flow of information and, subsequently, to control public perception by way of opinion makers, so-called "experts" and commentators, who dictate the terms and content of both sides of the argument.
Think about it and you will quickly see why "rational arguments in favor of the public good" are important.
Hint: "It's simple - free your mind and your ass will follow." -- Junior, Platoon
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do you really expect rational arguments in favor of the public good to be of any help against entrenched interests in this matter?
What interests are those, the interests of software companies like Microsoft? "Microsoft [infoworld.com] to pay $60 million to settle patent-infringement, antitrust claims". "Jury rules for Alcatel in Microsoft [reuters.com] patent case". As TFA say, some businesses take out software patents as a means of legal defense, someone sued them over infringement and they may be able to use their own patents as a
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Tort reform (Score:4, Insightful)
The only ones I could see supporting software patents are some patent lawyers.
Well, then we are screwed, because tort reform of any kind certainly isn't in the interests of the current political party that happens in be in power in Washington.
Let me first get this out of the way, I don't consider patent reform as being anything like tort reform. And I certainly don't want to make it easier for someone to get away with messing up a person's life. Because of someone's recklessness I was left with a disability when I survived an injury I wish I had died from.
On second thought, I'm too angry to recall what I was going to write so there is no follow up.
Falcon
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Cato Rocks (Score:2)
This is defense from a lawsuit by a company that makes useful products. It doesn't help against patent trolls.
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This is defense from a lawsuit by a company that makes useful products. It doesn't help against patent trolls.
Basically, if you own a patent, you're actually better off not producing any products.
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There's some truth to this. The company AMI Semiconductor stole a bunch of my patent-pending ideas back in 2000 and produced the Express Arrays with them. Basically, they paid us enough money to barely stay in business while we helped with the first array, and when it worked, they killed the deal, and took the technology. They crippled my little company, but we struggled and stayed alive. Had I gone after AMI, they would have killed us with court costs. One alternate plan I had if AMI succeeded in kill
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Did you at least egg their cars?
Re:Cato Rocks (Score:4, Insightful)
So far, I think the only thing stopping patent trolls have been that companies that do make useful products have more resources, better legal department, and bigger war chest (yay, capitalism).
But the way lawyers have been getting their way in everything, especially in the D.C., who knows how long this will last.
Assholes (Score:3, Insightful)
Re:Assholes (Score:4, Funny)
Re:Assholes (Score:5, Funny)
Four things. Money, sex , cars, nachos, and beer.
I'll come in again.
Yes, patent system not meant for software patents (Score:5, Informative)
Patent attorney here. Yes, software patents shouldn't be there. Patents are there to stop people from sitting on their ideas. Stopping people from sitting on their ideas helps society, because it give society more knowledge. However, for software there is no need for this mechanism. There is no shortage of innovation because of lack of progress. If one person doesn't think of it, another one will. Also, the first sale doctrine doesn't work. If I have a patent on a resistor, and I sell it to you and you put it in a computer, you're free to do that. You don't have that with software. I can't buy a piece of, say, Word, and use it in my own programs. For the same reason, it is very hard to figure out whether your program is off the hook. Any aspect of a program could be patented. Finally, software patents are bad (with so called "wish" claims). I have programs developed for my company. It takes me 5 seconds to come up with an idea, but it may take the programmer 5 days, or 5 weeks, to implement. If I go with a software patent to a programmer, no time is saved.
The patent system is open source avant la lettre. An inventor has to provide all his knowledge (provide the best mode), in a way that can be replicated by an ordinary person skilled in the art, and it is available on line from patent offices. The "license" it comes with is a peculiar one (territorial limited/time limited), but it expires sooner than any copyright. But it is a rough tool. Fine for many types of inventions, including medical drugs, but not for software (or business methods).
Bert
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Yes, software patents shouldn't be there. Patents are there to stop people from sitting on their ideas
Patents in general should not be there. Leonardo da Vinci and Archimedes did not "sit on their ideas, and they did not have patents to protect them.
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Patents in general should not be there. Leonardo da Vinci and Archimedes did not "sit on their ideas, and they did not have patents to protect them.
Leonardo da Vinci - 1452-1519. Birthplace: Florence.
Patents: 1421. Birthplace: Florence. [wikipedia.org]
Patents in a modern sense: 1474. Birthplace: Venice.
And if you're going to hang your hat on the Archimedes point, the Greeks had exclusivity rights to profits for anyone who discovered new refinements in luxury in 500 BC, 223 years before Archimedes was born.
Re:Yes, patent system not meant for software paten (Score:4, Insightful)
It is NOT fine for software, but certainly it is NOT fine for medical drugs. Can anybody else enhance failing Tamiflu now when Roche holds all the key patents? Thousands might or have to die because Roche is blocking others from the drug developement, it might not be so, but certainly possible. Similar in software, I have to pay $600 for Adobe CS4 as nobody can't produce similar tools because Adobe have their 'patent portfolio' there.
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The idea is that Roche developed Tamiflu, and 20 years from now anyone can make Tamiflu. At worst, society is losing a 20 society-disease-years over the matter (that's a fun unit, innit?). Afterward, society gets to benefit from a new flu drug (infinite society-disease-years, or something like that - and probably with a bigger unit of Society to boot).
Consider the alternative, where there is no such patent available. Does Tamiflu, or an enhancement, get created at all in this scenario? Sure! Of course! .
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Thats like saying that there are 5 AV vendors but you need all of them installed because they can't generate signatures that match the others, but don't worry, in 20 years they will give us access to all the signatures they are using now....
Wow, thants handy
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A system where a single entity paid for the cost of R&D and testing on the basis of results, rather than for the patent rights itself isn't necessarily going to have less innovation. It would just have to either be paid for by the federal government or by
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Exactly. Show me somebody who's implemented a software algorithm from its description in a patent document and I'll show you a pig that can carry a family of six aloft across the Atlantic.
We are not special. (Score:2)
Patents are there to stop people from sitting on their ideas. ... However, for software there is no need for this mechanism. There is no shortage of innovation because of lack of progress. If one person doesn't think of it, another one will.
This is not in any way unique to software.
Fine for many types of inventions, including medical drugs, but not for software (or business methods).
My understanding is that the main argument in favor of medical patents is that the cost of FDA approval is so insanely high compared to the production cost once things are approved. Which is remarkably similar to software, where development is expensive but distribution costs a few cents per copy for bandwidth or a dollar or two for a CD in a cardboard box.
medical patents (Score:2)
My understanding is that the main argument in favor of medical patents is that the cost of FDA approval is so insanely high compared to the production cost once things are approved.
While the research and development to bring a drug to the market may be expensive, pharmaceutical businesses spend more on marketing and sales than on research [eurekalert.org].
This is a sore spot for me, the National Cancer Institute [wikipedia.org] spent $183 Million to develop Taxol [wikipedia.org] yet Bristol-Myers Squibb (BMS) only paid $35 Million [essential.org] for exclusive rights to
Re:Yes, patent system not meant for software paten (Score:5, Informative)
It is not either/OR. So, they get the copyright too. Double whammy.
Bert
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It is not either/OR. So, they get the copyright too. Double whammy.
Bert
Or one step forward and two steps back. Copyright is both a positive right (it gives the author the right to distribute and sell his product under his own conditions) and a negative right (you can forbid others to do certain stuff with your copyrighted work). A single patent, which is a purely negative right (you only get to forbid others from doing stuff), from someone else can however completely undermine the positive rights conferred by copyright.
Re:Yes, patent system not meant for software paten (Score:5, Insightful)
Copyright is both a positive right (it gives the author the right to distribute and sell his product under his own conditions) and a negative right (you can forbid others to do certain stuff with your copyrighted work).
No, copyrights are purely negative rights. They permit the author to forbid others from doing certain things with their work under certain circumstances. But they provide the author no affirmative rights to do anything with his work. An author's right to create or publish a work is an exercise of his right of free speech and press, no different than if he were to use the work of another in a manner not prohibited by copyright. In the US, this right is guaranteed by the federal First Amendment and by similar provisions at the state level.
This is why, for example, an author could create obscene works, or child pornography, or libel, and have a perfectly valid copyright on them (there's no morals clause to what is eligible for copyright), but not be allowed to publish or perhaps even possess copies.
Subconscious copying (Score:2)
Copyright is both a positive right (it gives the author the right to distribute and sell his product under his own conditions) and a negative right (you can forbid others to do certain stuff with your copyrighted work). A single patent, which is a purely negative right (you only get to forbid others from doing stuff), from someone else can however completely undermine the positive rights conferred by copyright.
Copyright does not "give[] the author the right to distribute and sell his product under his own conditions". George Harrison got a copyright on "My Sweet Lord", yet he didn't have the right to distribute it because it was too similar to "He's So Fine" by Ronald Mack, which had been widely published. The problem of subconscious copying in copyright law, for which the key U.S. case is Bright Tunes Music v. Harrisongs Music, parallels that of independent invention in patent law.
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Copyrights are not enough. If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here. Then there are cases where the code
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Copyrights are not enough. If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X.
At this point he's infringing copyright just as much as when he'd making unlicensed copies.
Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product. Therefore having patents is necessary.
Well, no. It's only necessary if the competition stemming from this imitation kills the market rather than stimulate it. In general, more competition is better.
Re:Yes, patent system not meant for software paten (Score:5, Informative)
No, he's not.
Yes, he is, at least in the EU. Reverse-engineering is forbidden by software copyright law here, except if all of the following conditions are true:
See article 6 of the EU software copyright directive [europa.eu].
The output of his reverse engineering will be the abstract method that can be covered by a patent, but not by copyright. For example, after looking at the disassembly for X, and performing more analysis using a debugger, he figures out the steps to perform X are:
At the very least, you are tainted when you do stuff like this. Phoenix didn't do clean room reverse-engineering for nothing when they re-implemented IBM's BIOS [computerworld.com].
Right, but competition usually means performing to equal or exceed your competitor.
And this can be in many ways: customer service, price, time to market, branding, offered products etc.
If you simply sit by and wait, then copy (steal) something innovative created by your competitor, that's not performing at all.
Actually, that is exactly how competition works. You take what already exists, duplicate it and presumably add value in one way or another (from the list above). A certain amount of imitation is mandatory to have a competitive market.
Thanks to copyright and to the complexity of making well-working and polished software, innovators automatically have a limited lead-time advantage. Artificially extending this by many years using patents is only justifiable if otherwise the entire innovation of the industry would collapse. And there are simply no indications that this is the case, on the contrary.
It's just leeching off someone else's work to profit yourself. Soon inventors will get tired of getting taken advantage of, and only pursue inventions that take little time and money. That way, if someone copies their ideas, the loss won't be much. But society, as a general, will suffer more because many good inventions take more time and money, and those won't be created without sufficient protection.
It turns out that the above is simply not true in case of the software world. Competition (i.e., what you call copying, stealing and whatnot) is what drives innovation in the software industry, and the traditionally mild IP-regimes have been very conductive to this. See the overview of studies [slashdot.org] I posted in a previous comment.
Infringement != stealing. See Dowling v. US. (Score:2)
Patents protect the steps listed above, not how it's implemented, and therefore stop leeches from profiting from other people's work.
Physicians can use leeches [wikipedia.org] to treat a patient for profit, but leeches themselves cannot profit; they are annelid worms and not sapient.
Seriously though, the ability for a patent to be used against an independent inventor opens up an opportunity for a different kind of leech: the patent troll.
If you simply sit by and wait, then copy (steal) something innovative created by your competitor
You're assuming that copying constitutes stealing. Like Mr. Stallman [gnu.org], I dispute this assumption. What law dictionary or statutory definition uses "steal" to mean "copy"? I haven't examined 35 USC (U.S. patent law) c
Re:Yes, patent system not meant for software paten (Score:5, Insightful)
"If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here. Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product."
I missed the part where that's a bad thing.
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Remind me again: why do people use Open Source licen
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>>I missed the part where that's a bad thing.
Patents have a good side: they keep large established companies from just stealing from the little guys. Let's say I develop a new way to extract gold from the ocean. 3M, instead of paying me for the idea, steals it, and then makes billions while I linger in obscurity, even though I was the guy that did the heavy lifting on the process.
In software patents, by contrast, the opposite is happening. You have people that are independently working on projects get
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Copyrights are not enough. If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here. Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product. Therefore having patents is necessary.
At which point he's put in at least as much effort as you did (reverse engineering is hard). Which means that he can't unfairly undercut you, so the only thing patents would do is hinder progress by letting you sit on your ass for 20 years.
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Does that mean bank robbers deserve the money if they can penetrate the 20-inch vault door of a bank? Because penetrating that door is hard.
Is this a serious question, or are you just trolling?
The purpose of patents (and copyright) is to promote innovation. They are not natural rights like life, liberty, etc. If they do not promote innovation, they should not exist.
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Of course, I'm serious. Your statement insinuates the reverse engineering person somehow has legal rights to the work of others just because reverse engineering the invention is hard. That's like saying robbing banks is o
Re:Yes, patent system not meant for software paten (Score:4, Insightful)
Where do individual authors get off thinking that their incremental improvements on the ideas of other inventors which they released out into the world as a working product get to keep other people from making incremental improvements on top of it and distributing their own products?
Where do authors get off thinking they are doing more than riffing off someone else's chord?
And where do they get off thinking the government needs to enforce a monopoly for them on these derivative ideas?
Re:Yes, patent system not meant for software paten (Score:5, Insightful)
Your statement insinuates the reverse engineering person somehow has legal rights to the work of others just because reverse engineering the invention is hard.
No.
I am saying that they have that right by default (because knowledge fundamentally cannot be owned), and that reverse engineering being hard means that the fundamental justification for the patent system ("to promote the progress of science and the useful arts") cannot justify taking that right away in such a case.
All patents do is ensure the inventor, the person giving the benefits, is adequately compensated for his work, that's all.
No, they do not. They attempt to do so, but don't do a very good job and have a huge number of bad side effects (like blocking other inventions, turning the common case of simultaneous invention into a lottery, adding overhead to basically all research, etc).
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"But where do government, big business, or consuming public get off thinking they have a natural right to these innovations, to get them for free?"
That's not even a "natural right" but a "natural fact": once you make it public, *is* public.
"Without patents, the inventor is just a slave, working for free to improve the life of others, but receiving nothing in return."
I claim bullshit on that. What's the problem for an inventor working on wages for, let's say, IBM? If they pay me for it, I'll do it; if I th
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Several key inventions, like the steam engine, electricity, airplanes, cars, electronic transistors have launched entire industries that have provided jobs and other material benefits to millions of people for over a century. Without these inventions, these jobs wouldn't exist, these industries would not exist, and you and your parents, even the govt., would probably be poorer.
And without patents, those inventions would have been more widely available sooner, with more improvements. You can find a number of actual historical examples here [ucla.edu].
Nobody is asking for a handout, just what is rightfully, and justly owed.
You bloody well are asking for a handout, and at a net cost to society. Go look at history, note the prevalence of simultaneous inventions. Look at the innovations in software before it was considered patentable. You're seriously trying to claim that you're that indispensable, that only you can come up with a particular idea?
Re:Yes, patent system not meant for software paten (Score:4, Insightful)
Nobody is asking for a handout, just what is rightfully, and justly owed.
You ARE asking for a handout and what is not rightfully yours, a monopoly. Information in not owned by anyone. If you feel you'll miss out by sharing your ideas then don't share them. Once you do share them you still have them, but so do others.
Falcon
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But most "ideas" in software don't deserve a patent as they are methods and algorithms. We don't patent math.
Copyrights are not enough. (Score:2)
If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here.
Copyright is enough. With first mover advantages [wikipedia.org] if you can't make enough money to stay in business that's your fault. So what if a competitor releases a compeating program, either you innovate and provide a bet
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> Copyrights are not enough. If X is the new innovative piece of code within a program, a competitor can
> buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it
> works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here.
> Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product.
> Therefore having patents is necessary.
Admittedly
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The "exhaustion doctrine" is also sometimes known as the "first sale doctrine". While not identical to copyright first sale, it is analogous.
As far as State Street goes, have most of the software improvements since then been patented? No? Have some that would have happened anyway been patented in a bogus overbroad way by non-implementers? When I watch true innovators like RIM get their pants sued off by people who didn't do anything except sit around brainstorming 5 second ideas with their patent attorn
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As far as State Street goes, have most of the software improvements since then been patented? No?
Don't know. Quite a few have been. How many improvements are necessary to make a field patentable? Does the statute define a number? No?
Have some that would have happened anyway been patented in a bogus overbroad way by non-implementers?
That's happened with regard to machines and pharmaceuticals, too. If this is your reason to throw out software patents, then are you arguing for the end to the patent system in general?
When I watch true innovators like RIM get their pants sued off by people who didn't do anything except sit around brainstorming 5 second ideas with their patent attorneys, I think it's pretty obvious the system is broken.
Me too, particularly if you can write a patent specification that will overcome 35 USC 112 in 5 seconds. I mean, geez. Last one I wrote was 135 pages.
Most of the rest of your comment is pure claptrap as well. For example, if I buy a properly licensed special resistor, under the exhaustion doctrine I can pretty much do what I want with it, and the original licensor can't come back and get me for any infringement under the licensed patent.
That's not really "most of the rest". It'
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"Don't know. Quite a few have been."
Bullshit. Most of fundamental computer science work has been done before 90-s (advent of widespread software patents).
Besides, Europe doesn't have software patents. Don't see the lack of innovations there, though.
Re:Yes, patent system not meant for software paten (Score:5, Interesting)
Patent attorney here. Yes, software patents shouldn't be there. Patents are there to stop people from sitting on their ideas. Stopping people from sitting on their ideas helps society, because it give society more knowledge. However, for software there is no need for this mechanism.
[Citation needed].
Here's a bunch of citations [ffii.org] I once collected (note that it also includes a few opinions of political committees, but those are clearly marked).
Since State Street, there has been immeasurable innovation in the field of software. You've got nothing to back up this assertion.
I think we can indeed agree that software patents have not killed the software industry. That's however not a very strong argument if you claim that software patents are necessary or even helpful.
There is no shortage of innovation because of lack of progress. If one person doesn't think of it, another one will.
The same could be said about any field of invention, including machines and compositions of matter.
It's however doubly so applicable to software, because software innovation requires much less investment in materials, works with an idealised abstraction (rather than with finicky physical bits), and consists almost exclusively of incremental innovation. A.o., the FTC report and the report by the National Research Council cited above go into more detail.
Well, you could read the claims of the patent. That would make it very easy to figure out whether your program is off the hook.
Of "the" patent? You mean of all the granted patents, right?
And actually, the risk of whether or not you infringe on a patent (software or otherwise) is simply not manageable in practice. How do I know? Because you cannot insure yourself against such risks. AIG, Lloyds and others have tried for a short while to offer such policies, and suffered losses up to 3000% [edri.org]! So if even those guys specialised in risk management can't determine the risk of infringing on a patent, what makes you think Joe the Programmer can do so with any degree of accuracy?
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Here's a bunch of citations [ffii.org] I once collected (note that it also includes a few opinions of political committees, but those are clearly marked).
Thank you for that... I'll have to read through them. Will get back to you.
Since State Street, there has been immeasurable innovation in the field of software. You've got nothing to back up this assertion.
I think we can indeed agree that software patents have not killed the software industry. That's however not a very strong argument if you claim that software patents are necessary or even helpful.
Yes, but it refutes GP's argument that software patents are bad per se. It's equivalent to an assertion that if we didn't have the death penalty, there would be a thousand-fold increase in the murder rate. Sure, that's an interesting thought
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It's equivalent to an assertion that if we didn't have the death penalty, there would be a thousand-fold increase in the murder rate. Sure, that's an interesting thought, but there's no evidence whatsoever, so on its own, it doesn't really mean much.
You can look at places without the death penalty and see that that claim is absurd.
You can also look at history and at other places to see what happens to innovation when there are no patents, or when patents expire. Which seems to show [ucla.edu] that innovation goes up slightly in such cases.
At that point, he's indemnified. Therefore, he performs no due diligence, because it's expensive and he's fully covered against loss.
But he never does that anyway, because if he did ask someone knowledgeable they specifically told him that looking can triple his liability and is therefore a really bad idea.
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Yes, but it refutes GP's argument that software patents are bad per se.
No, it only proves that they (or at least the way they are used by the majority of patent holders at this time) are not bad enough to kill off the industry. It does not in any way refute the argument that they are bad.
It's equivalent to an assertion that if we didn't have the death penalty, there would be a thousand-fold increase in the murder rate. Sure, that's an interesting thought, but there's no evidence whatsoever, so on its own, it doesn't really mean much.
There are many countries without a death penalty and with lower murder rates, which is an indication that this would be an incorrect assumption. The same goes for software patents: economic studies (Bessen&Hunt, also in the overview I gave in my previous post) show that companies investing
Re:Yes, patent system not meant for software paten (Score:4, Insightful)
Since State Street, there has been immeasurable innovation in the field of software.
That is entirely meaningless. What you need to measure is (1) how much of that innovation would not have happened without patents, and (2) how much other innovation would have happened without patents.
Figure out how much software there is where once you know what it does or how it works, re-implementing it would take 100x less effort.
Figure out how much software was lost due to "chilling effects" where people are afraid to do anything, and how much was outright killed (like for example Blackboard has been trying to do to everyone else in that industry).
I'm guessing that (1) is very very small, and (2) is significantly bigger but still somewhat small when taken as a fraction of all software.
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Since State Street, there has been immeasurable innovation in the field of software.
That is entirely meaningless. What you need to measure is (1) how much of that innovation would not have happened without patents, and (2) how much other innovation would have happened without patents.
Agreed. And because that sort of vague hand-waving "what if" is entirely unmeasurable, you apparently agree with me that GP's blind assertion that software patents stifle innovation is unsupported by any evidence whatsoever.
Here's another one: say I said that if we incorporated the death penalty for shoplifting, there would never be any shoplifting. And for proof, I offer that there's shoplifting now and we don't apply the death penalty. Doesn't matter, it's still an unsupported assertion.
Figure out how much software there is where once you know what it does or how it works, re-implementing it would take 100x less effort.
I'm not sure what
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The only reason that the software industry hasn't been brought to a grinding halt by patents is that software is generally opaque; few other than the maker knows the details of how it works (and yes, that applies to open source as well, to a large extent). So even the patent holders have no idea how much infr
software patents are not needed (Score:2)
[Citation needed].
FOSS. There are more than 200,000 software projects on SourceForge [sourceforge.net] alone. Freshmeat [freshmeat.net] has thousands more. Now I'll admit I bet most of them are abandonware or are little used but software was being programmed before patents were ever issued on software.
Patent rights are significantly stronger than copyright, which is one of the reasons they're time-limited.
Both copyrights and patents were originally issued for 14 years with one 14 year extension possible in the US. It's only because pol
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Innovation doesn't happen by itself, people have to spend time and money on it. And patents ensure they get paid for their efforts.
Except of course, that you routinely see things like the burst of innovation in steam engines that happened immediately after Watt's patents expired (quotes from here [ucla.edu]):
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"Wrong, inventions within in a successful software product will be copied within a few days without this protection."
As in Operative Systems are not protected by patents, therefor anyone could copy Microsoft within few days, therefor *this* will be the year of Linux on the desktop?
C'mon: big software names have reached their status *without* patents; I think this would offer you some food for mind.
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Innovation doesn't happen by itself, people have to spend time and money on it. And patents ensure they get paid for their efforts.
I will not spend tyme, money, and effort to develop software if I fear I will be slapped with a patent infringement lawsuit. Nor will some small businesses and individual programmers. When companies take out software patents purely as a precautionary measure that holds up progress as well as adds costs.
On the other hand FOSS has shown programmers and software businesses can ma
Copyright argument is not convincing (Score:5, Interesting)
This particular argument from the article is oft-repeated but weak:
"Software developers already enjoy strong copyright protections for their work, rendering patent protection largely redundant."
The exact same argument could be made for several classes of patent, such as chemical process patents, that people seem to generally consider legitimate patents in pretty much every country that has patents. If I am to believe that this is a compelling argument against software patents, then it is also a compelling argument against some other patentable areas. (Most arguments against software patents have this feature.)
On the other hand, a much more compelling argument can be made against "business method" patents (a subset of the suitcase called "software" patents) because they do not strictly define a machine. The reason algorithm patents (also part of the "software" patent suitcase) have long been acceptable just about everywhere is that they are strict abstractions of novel circuits (patentable material in virtually every country). As a general observation, most proponents of software patents are thinking of algorithm patents while most opponents of software patents are thinking of business method patents. The ambiguity of the term "software patent" muddies the context and makes intelligent discussions more difficult. It would help if everyone was more precise in their selection of terms.
Re:Copyright argument is not convincing (Score:5, Insightful)
What is the greater tragedy?
Blizzard and Microsoft re-invent their gaming tech.
or
Blizzard and MS are at the mercy of Electronic Arts because EA managed to patent something that each could re-create in isolation?
Patents are meant to prevent wasteful re-invention or avoid the extreme case when re-invention is not likely.
The problem with patents today is that patents are being granted for trivial and obvious things that could be easily re-invented by a few undergraduate students.
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" instead of throwing the baby with the bathwater, there should be a mechanism to disallow these trivial patents -- the patent writer must write in plain English what the innovative part about the patent is, instead of the hard-to-understand patent lingo used today. "
The problem is no one (as in "really, no one") wants this. In the case of software, having that achieved would be stupidly easy: you just need to append to your patente claim the source code that achieves its effects. Anybody with a different
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The reason algorithm patents (also part of the "software" patent suitcase) have long been acceptable just about everywhere
Well, no. The real software patents have only been acceptable in the US since State Street (Diamond vs. Diehr was about curing rubber, except that the rubber curing was software-controlled; i.e., the patent claimed a process for curing rubber, the fact that it was computer-controlled was just an aside and not central to the patentability). State Street was in 1998.
Both in the US and in Europe, there is still a lot of controversy about software patents till today (this paper only confirms that). India didn't
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State Street was a business method patent, not an algorithm patent. While both types of patents are often classified under the rubric of "software patent
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They are (correctly) viewed as strict abstractions of circuit designs, circuit designs being unambiguously patentable subject matter.
And as I mentioned in previous post, so are pianos. You can also make a dedicated piano or hand-crancked organ that only plays that piece of music (a "dedicate circuit"). That does not make "this piece of music when played by an organ/piano" any more patentable though. At most, the specially constructed organ/piano could be patentable, but that does not confer any extra rights to the music, even when someone else plays it on another piano.
Business method patents are not an abstraction of a circuit design
They are when implemented using a computer algorithm. There is no inh
Re:Copyright argument is not convincing (Score:4, Interesting)
This is incorrect. A compression algorithm has a strict definition for all use cases, a set of input bits mapped via specified transformations to a particular set of output bits. This is no different than a chemical process patent, which specifies the inputs and transformations to generate the output; it says nothing about the specific plant implementation or similar transformations that work on different inputs or generate identical outputs.
What are the logical transforms and the input and output bit set pattern for one-click shopping? What is a universal boolean logic for selling pet food on the Internet? The very reason business method patents are being questioned is because no such specification exists or can exist for a useful implementation; any specification strict enough to be reducible to a machine would also be too narrow to have any value. In short, business method patents lack sufficiently strict specification to be directly mapped to a machine. That is a rather important difference.
Business methods patents are considered bad because in order for them to be useful as patents (i.e. not trivially worked around), they also have to be vague enough that no strict machine specification is possible.
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This is incorrect. A compression algorithm has a strict definition for all use cases, a set of input bits mapped via specified transformations to a particular set of output bits. This is no different than a chemical process patent, which specifies the inputs and transformations to generate the output; it says nothing about the specific plant implementation or similar transformations that work on different inputs or generate identical outputs.
A compression algorithm is an abstract mathematical entity, limited only by mathematical truths. A chemical process is a physical process that operates under the limits of the physical world. Neither the nature of both things nor the economics and dynamics of both innovation environments are even remotely comparable.
Again: playing a piece of music on a piano is also a particular input, a set of transformations (by the piano) and a certain output. This is not an argument to declare something patentable.
Paten
Re:Copyright argument is not convincing (Score:5, Insightful)
Well, I don't agree with patenting algorithms either.
I think when you think of an algorithm, you have in mind something like an image recognizing algorithm that took years to perfect.
But when I as a developer think of an algorithm I think of very basic building blocks, like binary search, quicksort, hashes, RLE compression, Hamming code. If any of those was patented progress would get slowed down for years.
It can get even simpler than that. Something trivial like "if( there_is_data_to_print && there_is_paper && there_is_ink ) print_document()" is an algorithm.
Allowing patents on this means giving somebody the ownership of a piece of math. That something could be illegal to calculate without paying somebody is completely insane IMO.
As a developer I say: I don't want software patents in any shape or form. Not of the "business method" sort. Not of the "algorithm" sort. There should never be such a thing as a line of code that can't be written without paying somebody for a license. Period.
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"Allowing patents on this means giving somebody the ownership of a piece of math."
No, this is only true for a particular patentable algorithm in the same way it is true for *all* patentable subject matter. This is another argument that is not consistently applied (any math argument that applies to a computer algorithm trivially generalizes to all physical machines and material processes).
To use your quicksort example, if someone patents the quicksort algorithm it does not prevent you from sorting data gene
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I don't have time for a proper reply right now, but I'll say this:
I think that if patents ever worked, they have stopped doing what they were intended to do. So I'm skeptical about the usefulness of having patents at all.
That said, I'm only an expert in my own field, and I'm completely certain that I don't want them there. And note that I'm somebody who could supposedly benefit from their existence.
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"So I'm skeptical about the usefulness of having patents at all."
I find the consistency of this opinion quite reasonable; I have no strong opinion for a specific outcome, but a logically consistent position would seem to be all or nothing (sans business method patents, which are a different kind of beast). My objections to most arguments is the lack of internal, logical consistency -- they look more like self-serving rationalizations and rent-seeking than reasoned policy.
I've worked in a couple different a
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I've worked in a couple different areas of patentable subject matter, and most of them are functionally indistinguishable from computer algorithm patents in terms of what happens. Business method patents are a whole 'nother kind of mess.
What makes them different?
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Business method patents are different from computer algorithm patents in that the latter always has a strict machine specification and the former does not. The only way to make business methods have a strict machine specification is to severely reduce the scope to the point where the patent would have no real value in the sense that everyone's business method would have a different specification and therefore be their own unique inventions. Can you define the "shopping" in "one-click shopping" in terms of
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An actual patent on Quicksort would start with a claim covering sorting in general. Then it would move on to a claim which covered all comparison sorts, then all divide and conquer sorts, and only then would it be specific enough to be limited to Quicksort.
Patent infringer here. (Score:5, Insightful)
Anyone who's written a relatively small amount of software has very likely infringed on someones software patent. I happen to know for a fact I'm an infringer since I wrote software that did a simple zip-code distance lookup web program and years later found out someone actually managed to patent this. The application was taken down years ago because the organization I created it for ceased to exist and had extremely shallow pockets so there's no real danger of being sued over it. I don't recall how I found out about the patent, but it certainly wasn't from looking through granted patents.
The point being it's not that difficult to infringe on someones software patent and have absolutely no idea you've done so. It wouldn't surprise me in the least if I learned I've personally written code that infringed on dozens of other software patents. I'd be extremely surprised if the libraries I use every day didn't infringe on at least one software patent.
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The other problem is that (in the US anyway), if they can prove you knew about the patent then that's "willful infringement" and that incurs punitive damages, which is triple the regular amount. Most lawyers would advise developers to avoid learning about software patents just because of this fact.
Anti-patent whining (Score:4, Informative)
"Imagine the outcry if the courts were to legalize patents on English prose. Suddenly, you could get a "literary patent" on novels employing a particular kind of plot twist..."
Copyright on literary concepts is strong enough to survive conversion from book to film, even when nothing remains of the original dialogue. It's strong enough to cover original sequels. Read Harry Potter and the Unauthorized Sequel. [marquette.edu] The concept of "scenes a faire" [wikipedia.org] covers the concept of literary "prior art" and prevents re-copyrighting the obvious. This is generally considered workable, although it took some litigation in the 1980s before the law settled down as regarding video game "look and feel".
"Small businesses and nonprofit organizations far removed from the traditional software industry have IT departments producing potentially infringing software. The Brookings Institution's Ben Klemens has" documented [cato.org] that this is not a theoretical problem"
Following the "documented" link leads to a set of PowerPoint slides by someone listed as "Senior Statistician, Mood and Affective Disorders, NIMH". (Where does the Cato Institute find these people?) He's grumbling about infringement lawsuits directed against the Green Bay Packers, Caterpillar, Kraft Foods, J. Crew, Linens and Things, McDonalds, Dole Food, and Oprah Winfrey. All occupy dominant positions in their industry. (Technically, the Green Bay Packers are a "small business", with only 189 employees, but the business is valued at $911 million.) [forbes.com] None is a nonprofit.
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Lots of small businesses get caught in the crossfire. AllMyData.com, a small company, along with several others, is being sued with BestBuy, over as general a thing as network backup ( http://dockets.justia.com/docket/court-txedce/case_no-2:2009cv00249/case_id-118157/ ). Small companies don't get sued directly as often since they aren't as lucrative targets, but they can still suffer when trolls go after the big guys.
Cato !Free Market (Score:2, Informative)
It is nice to see Cato catching up to the real supporters of the free-market, wh
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By real supporters of the "free-market" do you mean the folks over at mises.org? I would say that the Cato institute lies within the realm of pragmatic Libertarianism. While they do not take an absolute stand with the An-Cap types over at mises.org they do present realistic free-market solutions within our current system.
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Seriously? Every time I've seen something from the CATO institute it's always been the most zealous kind of free market fundamentalism. I can't see how you *can* get more economically right wing than that, nor do I want to.
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Abstraction Physics shows Software is not ..... (Score:2)
... a patentable media but a human right and duty to make use of to advance.
See: Abstraction Physics [abstractionphysics.net]
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That was... trippy... So I take it this is what you get when you take a computer programmer, gave him a hell of a lot of weed, some doritos, a wiki, and lock them in a room for a few days.
Actually, the last line is funny: "Identification of the ten base action constants was done by Timothy Rue in February 1988, while having lunch at Pizza Hut." Wow.
Unlikely (Score:2)
Personally, I think it's fairly unlikely that we'll get any useful guidance from the Supreme Court in Bilski as applied to software patents. While some of the case law related to Bilski does apply to software patents, the Supreme Court will probably limit itself to the narrow questions of Bilski (i.e., business method claims that are fairly obviously directed to abstract concepts. Software patents are enough of a gray area, and enough of a matter of public policy rather than established case law, that the
Tell me I'm not the only one... (Score:2)
Software Patent == (Monopoly + Business Land Mine) (Score:2)
Software Patents are no more than Business Land Mines in the form of Monopolies. The whole idea of monopolizing an idea is ludicrous. The idea of choosing what's innovative and what's not is absurd. If necessity is the mother of all invention (and it usually is), then one man's "innovation" is another's necessity.
Business-wise, they are nothing more than government granted monopolies, and hidden land mines. They are totally ludicrous from a social perspective because they hurt everyone.
I lied.
They don't
Hmm. (Score:3, Insightful)
Yeah, we should ignore all those hopelessly biased programmers, and listen to totally impartial you.