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Recipient of First Software Patent Defends Them 392

Arguendo writes "Martin Goetz, who obtained the first software patent in 1968, has penned a thoughtful defense of software patents for Patently-O. Goetz argues that there is no principled difference between software and hardware patents and that truly patentable software innovations require just as much ingenuity and advancement as any other kind of patentable subject matter. The Supreme Court is of course currently considering whether to change the scope of patentable subject matter in the Bilski case, which we've discussed before." Does it weaken Goetz's argument that his description of the software lifecycle harks back to the waterfall days and bears little resemblance to current development practice in open source and/or Internet contexts?
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Recipient of First Software Patent Defends Them

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  • by Anonymous Coward on Tuesday December 01, 2009 @06:30AM (#30281258)

    We all know that software patents do not help the advancement of useful arts. Period.

  • by Manip ( 656104 ) on Tuesday December 01, 2009 @06:51AM (#30281334)

    The big principle difference is that in the physical world we can discover new things and invent better ways to do existing things. I am yet to see a single software patent that I feel is really a new invention that requires protection. If someone can link me a software patent that they feel was a new invention and that others might benefit from then by all means, I am happy to be proved wrong...

  • by Halo1 ( 136547 ) on Tuesday December 01, 2009 @07:07AM (#30281420)

    The choice of implementation for computer functions is a pure economic choice which mainly has to do with cost, speed, and flexibility.

    That's absolutely correct. And the reason that people choose software when they can get away with it, is because it generally much cheaper, faster to implement and more flexible. Which in turn results in completely economic effects of patent claims that include software implementations compared to claims that only cover hardware implementations.

    The whole argument about software companies also performing state-of-the-art R&D should be irrelevant from a patents-point-of-view. Patents are not a natural right (they're not awarded because someone deserves them for whatever reason), but they are purely economic tools. And blunt and wide-reaching ones at that. Applying blunt and wide-reaching tools without discrimination just because some things are alike in terms of intellectual achievement does not necessarily have the same economic effects. Again: patents are not rewards, they're tools, to be applied with care where it makes macro-economic sense, not to protect certain business models at the cost of a huge overhead for an entire sector of industry.

    And according to various economic studies [ffii.org] (also includes citations from some political documents, feel free to ignore those), patents indeed don't have overall positive effects on in the software field. In fact, the 2003 report on innovation from the FTC [ftc.gov] came to the conclusion that patents are not very important to innovation in the semiconductor industry either (although slightly more so than in case of software, and their downsides are slightly less detrimental in that case). So the whole comparison with hardware and software does not necessarily lead to the conclusion that the author of the article envisions...

  • by Znork ( 31774 ) on Tuesday December 01, 2009 @07:34AM (#30281550)

    There is no problem with software patents per se.

    There are always problems with patents per se, as they sub-optimize the free market. Some industry areas are just exposed to more damage; the shorter the development cycle and the more highly multi-functional/combinatory the segment is, the more problems you'll get as inventions that happen to incorporate something patented, or would combine some patented things become basically impossible to make, potentially slowing down development in some areas by decades.

    But economic damage is inherent in the patent system no matter what field. Protection from competition will always mean loss of efficiency and things become oh-so-expensive (which itself causes cries for more protection).

    Meaningful reform cannot be accomplished as long as the monopoly right is kept. If you want to combine patents with a free market economy, the only way to do that would be to change the function so they only mean you automatically get a payment when someone uses the invention in question, but the use remains free. As the money either way gets extracted from the economy, it's no different from any other tax, so financing would be mostly up to whatever wouldn't be excessively counter-productive. With the difference that an actual tax and budget would actually be possible to account for and control, and a budget would make all the parties in the patent system interested in having the 'right' patents because 'more' patents would mean they'd pay out less.

  • by MrMista_B ( 891430 ) on Tuesday December 01, 2009 @07:48AM (#30281622)

    All software is math, no exceptions.

    You can't patent math.

    Well, in the current state of things, you /can/ patent math, and that's something a lot of people are hoping is revoked.

    Imagine if something like calculus had been patented, or the quadratic equation?

    We'd be fucked, as a species.

    For a concise, well written and much elaborated explanation, see "An Explanation of Computation Theory for Lawyers": http://www.groklaw.net/article.php?story=20091111151305785 [groklaw.net]

    Now, that's written specifically for lawyers, but it should be clear enough, perhaps more clear because of that, for most of the Slashdot crowd to get it - all software is math, no exceptions, and math should not be patentable.

  • he's actually right (Score:3, Interesting)

    by Tom ( 822 ) on Tuesday December 01, 2009 @08:15AM (#30281786) Homepage Journal

    No, really. And I say that as an outspoken opponent of software patent.

    His most important sentence is It is obvious that software products are not "software ideas". - and that's what's wrong with the patent system. A hundred years ago, you had to submit a working model to get a patent. These days, you can patent software ideas and business processes.

    When we speak about "software patents" we are really talking about monopoly rights on algorithms. And that's as stupid an idea as a copyright on a number.
    What the author apparently means when he talks about "software patents" is a complete product, a working implementation of a concept that can be demonstrated to do what the list of claims contains. That's a bit of a different animal than about 99.999% of the software patents issued during the past 10 years.

    And I agree that a bit of protection on that would be nice for those who invented it. We can discuss whether or not patents is the right tool, or copyright, or some new form, but that's not important.

  • by Miamicanes ( 730264 ) on Tuesday December 01, 2009 @08:56AM (#30282026)

    > Software is already protected by copyright, and should not be protected by patents.

    Right now, it's kind of like "pick your poison". The problem isn't so much patents *per se*, as the way they've been granted (ie, the ongoing clusterfuck caused by the Clinton-era USPTO during the dotcom boom, whose attitude was "grant 'em all, let the courts sort it out"), the fact that they can't be proactively challenged (you can only wait to be sued for infringement, and if the patent's owner drops the case at the last moment, they can do the same thing to the next victim), and the fact that "one size/duration doesn't fit all scenarios" -- two decades is barely enough time for truly groundbreaking new drugs, but is gross overkill in most software scenarios.

    Pointing towards copyright law isn't necessarily an improvement. At least patents eventually expire. Thanks to Disney, copyright is effectively *eternal*. Do we *really* want software techniques to be legally protected *forever*?

    Pushing software harder and harder into the "copyright" camp is, IMHO, a dangerous strategy, because it ultimately leads those copyright owners to try and expand the scope of what that copyright protects. Patent trolls are bad, but copyright trolls have the potential to be much, much more destructive in the long run.

  • by TapeCutter ( 624760 ) * on Tuesday December 01, 2009 @09:07AM (#30282084) Journal
    Constructing a transform table from input/output observations will tell you what the black box does but it will not tell you how it does it. For example let's pretend I am a genius and I have figured out an analytical solution to the three body problem. You observe my black box and create a transform table. However without my insight you are still left scratching your head as to how the black box can perform the transformation so rapidly and accurately when the only known way to approximate a solution is via numerical analysis.

    Clean room is a black box by another name. Again by definition you cannot know how the black box performs it's task (the algorithim). Sure you could guess the right answer but if it's that's obvious then why would it be patentable?

    I certainly don't want people to give away their "hard work" and throwing out copyright would also throw out the GPL that my comrades here at socilistdot are so fond of. However if the algorithim/invention is so obvious that it can be guessed by observing a black box then I would argue the inventor has not "worked" hard enough to earn a state sponsered monopoly on the idea.

    Dissasembly is of course a white box that allows you to copy the algorithim without necassarily understanding it. This may or may not come under the perview of copyright or trade secrets but I will leave that argument to someone with a better understanding of law.

    "Stop posting grossly incorrect statements about a field you know nothing about." - Have you checked your arse for bite marks?
  • Goetz argument (Score:2, Interesting)

    by ath1901 ( 1570281 ) on Tuesday December 01, 2009 @09:18AM (#30282140)

    Goetz argument isn't weakened by using the waterfall model. He's just comparing phases of the waterfall model traditional manufacturing so that's hardly an argument at all.

    His argument seems to be that since you can implement any algorithm in hardware just as well as in software, both ways are equal and thus patentable (given the current patent laws).

    His mistake is that you can not and should not ever be able to patent algorithms (since it's math), only a specific physical machine that "executes" the algorithm.
    No one has (yet) claimed a numerical method like Runge-Kutta should be patentable. However, if you find a novel way of implementing Runge-Kutta using sticks and rocks, you can patent that particular physical machine.

    (Ok, some crazy patent lawyer or politician has probably claimed algos should be patentable but no "real" people with braincells)

  • by mdwh2 ( 535323 ) on Tuesday December 01, 2009 @09:30AM (#30282224) Journal

    No patents mean anyone can copy the invention without paying the inventor, so I win that argument.

    Not with software they can't, that's protected by copyright.

    Is someone who comes up with an algorithm an "inventor"? Algorithms are a subset of mathematics - where do we draw the line? Are mathematicians "inventors"? Perhaps mathematics should be locked up in patents too - after all, surely mathematicians deserve to be paid? According to you, they couldn't possibly earn a living any other way?

    (And the idea that not having patents is "socialist" is absurd.)

  • by mpe ( 36238 ) on Tuesday December 01, 2009 @09:43AM (#30282356)
    Software is already protected by copyright, and should not be protected by patents.

    Up until about 25 years ago it was quite hotly debated if sooftware (especially compiled object code) was actually covered by copyright law or not.

    Patents are required on physical objects because they are not covered by copyright, and so absent patent protection an engineer could simply disassemble your new vacuum cleaner (for example) and produce a clone, cheaper than yours as they don't have to cover the R&D costs.

    In plenty of industries buying your competitors' products and having your own people take them apart is the norm.
  • by somersault ( 912633 ) on Tuesday December 01, 2009 @10:11AM (#30282668) Homepage Journal

    The hammer itself, that is, the physical thing that is a hammer, can neither be patented or copyrighted.

    I think if we lived in a world where we had high precision multi-material 3D printers or Star Trek type replicators, we probably would have laws that copy protect physical objects. We have copy protection for information because it is so easy to copy, yet it is acknowledged by us humans to be valuable and most of us recognise that the creator should get first dibs on his idea.

    Why should an executable not be eligible for copyright, while a source file or digital image should be copyrightable? And what happens in the case of scripts, where the source file effectively is the same as an "executable", albeit at a higher level of abstraction? There aren't really any real world analogies for that situation. It would be like an edible cookbook that can magically assume the properties of any recipe written inside, and that regenerates each time you take a bite.

  • Re:Woosh (Score:2, Interesting)

    by gnupun ( 752725 ) on Tuesday December 01, 2009 @10:26AM (#30282816)

    There is no inherent right for anyone to restrict others copying / doing with whatever they see and obtain. Patents are a trade-off, a contract in society, but no right.

    I think you're are a little misinformed, it's the other way around. No one has an inherent right to force an inventor to reveal his invention to the world. That's what the world was like before patents. Trade secrets were employed to prevent competitors from stealing ideas to maintain monopoly and high profits. But the inventions died with their inventors. The government, observing the waste of losing inventions (lowered GDP), decided to coax the inventors into revealing their secrets by offering to protect the inventions for a limited time with a monopoly. In return, the inventors were required publish an exact how-to guide to recreate the invention, hence the patent system was born.

    If the govt were to remove patent protection, the inventors would go back to trade secrets. And if that won't work, they probably won't release any products using that invention -- they don't want to do free R&D for some big company.

  • by tixxit ( 1107127 ) on Tuesday December 01, 2009 @12:14PM (#30284274)
    I like the article (read it before) and it gives a good intro to the theory of computation, but I am not sure the fact that algorithms are "discovered" should decide whether it is patentable. By the same token, any physical invention was simply a discovery of a particular combination of matter. The spirit of patents is to reward people for their "inventions" in order to spur innovation. It is certainly debatable whether people need a monetary reward in order to innovate (experience would tell us otherwise), but the fact that algorithms are technically "discovered" should not detract from the shear ingenuity that goes into "discovering" them. I hate when laws are applied as literally as possible, because clearly the spirit of patent laws would encompass novel ideas in algorithms. What really needs to be weighed is whether software patents spur or hinder innovation. Many would argue the latter, and I think that should be the debate on whether or not software is patentable, since that is in opposition to patent laws' spirit. Also, a virtual shopping cart is not my idea of ingenuity.
  • Re:Socialists (Score:3, Interesting)

    by Teancum ( 67324 ) <robert_horning AT netzero DOT net> on Tuesday December 01, 2009 @01:43PM (#30285498) Homepage Journal

    The problem I see with this is to define who, exactly, is getting plundered here and who is getting exploited.

    For myself and based upon my lifetime of experience, I have known many individuals who have filed patents and sought patent protection on a great many things. Heck, I've even worked for companies who have filed patents on work that was done while I was an employee (nothing personal, but some co-workers).

    In not one case, not even these companies I worked for, was patent protection anything other than something purely defensive to keep some asshole from suing their behind and seeking damages for patent infringement. They ***NEVER*** sought damages or frankly even earned a single dollar from patent royalties, both individuals and corporate entities that I directly worked for and was involved with the patenting process.

    If anything, I saw how a prior patent kept a patent troll away by using a previous patent as establishing prior art. That was a good thing.... I guess.

    Far, far too often patent attorneys are simply a part of a huge scam that seeks to extract money from otherwise hard working engineers and designers with the faint dream that somehow they might get rich off of their "invention". Compared to the amount of money that gets dumped into the USPTO and their farm of scammers associated with them to patent all of these crazy ideas, the amount actually paid in the form of invention royalties is relatively minor.

    In terms of an overall economic impact, abolishing patents would only cause a few thousand lawyers to suddenly be unemployed and have to obtain meaningful work elsewhere in society. That seems like an overall positive thing for me as well, as we could use some more people who actually make things rather than suck up on the labor of others. Is seeking a reduction in the number of lawyers in America something to be considered socialist? If so, I guess that I am one.

    That stretches the imagination quite a bit to say somebody wanting smaller government and fewer taxes is a socialist.

"Tell the truth and run." -- Yugoslav proverb