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Why Software Patents Are a Joke — Literally 311

eburnette writes "A former Sun/Oracle employee explains how developers created patents in an unofficial contest to see who could get the goofiest patent through the system. James Gosling said, '... we got sued, and lost. The penalty was huge. Nearly put us out of business. We survived, but to help protect us from future suits we went on a patenting binge. Even though we had a basic distaste for patents, the game is what it is, and patents are essential in modern corporations, if only as a defensive measure. There was even an unofficial competition to see who could get the goofiest patent through the system. My entry wasn't nearly the goofiest.' Now Oracle is using patents from the same folks as the basis for its lawsuit against Google."
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Why Software Patents Are a Joke — Literally

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  • by mykos ( 1627575 ) on Tuesday August 17, 2010 @01:54AM (#33272756)
    The way patent law works now, nobody can just start up a business and invent shit. They need mountains upon mountains of patents to fight against other companies with mountains of patents. Then they need an army of lawyers to examine their inventions to make sure it doesn't violate any patents. I applaud these guys for making a mockery of the USPTO, although they were beaten to it by the USPTO themselves.
  • Re:Yep (Score:2, Interesting)

    by Tablizer ( 95088 ) on Tuesday August 17, 2010 @02:02AM (#33272788) Journal

    You mean big companies bribing the system to allow patents on asses.

  • by I'm Not There (1956) ( 1823304 ) on Tuesday August 17, 2010 @02:51AM (#33272970)

    Even though we had a basic distaste for patents, the game is what it is, and patents are essential in modern corporations, if only as a defensive measure.

    I really appreciate their work at mocking patents law system, but I can't agree with this part. While we can't change patent laws, we can at least avoid having them. We're not forced to patent our ideas just to protect them, because nobody can make sure the very same patents won't be used for suing other developers. I live in Iran and our patent system isn't as silly and as serious as America's, but I'm trying to avoid even this. I've come with an idea for a new Persian soft keyboard for our own commercial product. Everybody says "it's so innovative. How are you going to patent this?" I'm totally avoiding this, even at the risk of our brand new idea being copied by the others. Fortunately my company is supporting this, but alas, our chance for changing behavior of big companies is even less than odds of changing patent laws.

  • by ShakaUVM ( 157947 ) on Tuesday August 17, 2010 @03:07AM (#33273032) Homepage Journal

    Well, apparently, the guy has patented light switches, turning computers on and off, and wiring buildings for power.

    I suppose he can sue anyone he wants, eh?

  • by Kman_xth ( 529883 ) on Tuesday August 17, 2010 @03:29AM (#33273096)

    Android has pretty much played out the way that we feared: there is enough fragmentation among Android handsets to significantly restrict the freedom of software developers.

    The notion that Android suffers from a huge fragmentation problem seems to be repeated everywhere, but I really don't understand where this is coming from. I've developed JME and Android applications and the amount of fragmentation on Android is mostly non-existent. Apart from some small number of device-specific bugs (that are fixed with phone updates) that won't affect most Android apps, cross-device development is a breeze. I remember JME development was way more troublesome, where model-specific versions were the rule instead of the exception.

  • by Shihar ( 153932 ) on Tuesday August 17, 2010 @03:38AM (#33273124)

    You might not need a patent for your keyboard, but in any complex technology, you do. The Apple Vs HTC is a great example. HTC is building off of the 'no shit' next steps in cell phone technology. What is patented by Apple is stuff that, even if they did "invent" first (which is a dubious claim to even begin with), would have been invented in the very near future by others who were running down the same path. So, Apple sues HTC claiming infringement on a pile of obvious next step technologies that are absurdly broadly defined to begin with. HTCs only defense is to turn around and do the same. So, HTC has some stupid and obvious patents that they then claim Apple is infringing upon. The defensive pattens are not there to protect your technology, they are there to be used against a company trying to sue you.

    Patents are like nuclear weapons. Even if you don't want to use the damned things offensively against others, you still want them so that you can threaten to use them on anyone who uses them on you.

    Sadly, what this leads to is a stifling of creativity and innovation. The point of a patent is to encourage people to invent. As soon as a patent fails at that, it fails at its purpose. So, in the case of cellphone makers, it isn't like the lack of the ability to patent some overly broad technology would have prevented Apple from using and developing it. It is being used now ONLY to prevent creativity and innovation. It basically means that no one who doesn't already have an arsenal of patents can't jump into the market. The thought of a small time specialized cell phone maker jumping into the market is laughable because you can't enter the market unless you are armed to the teeth with your own defensive patents. Hell, the very reason why HTC is getting attacked by Apple is because they have the smallest patent portfolio.

  • by GrpA ( 691294 ) on Tuesday August 17, 2010 @04:06AM (#33273206)

    About 18 years ago, I did the same.. We had to come up with patents for a product that was the owner's pet project... Well, I had to come up with a patent too, since I had worked on the project, so I wrote up a patent for a steering wheel. It was a complete joke and i used as much obfuscation as I could, describing complex equations defining circular motion such as X^2+y^2=1 and the likes.. It had the other engineers in stitches... We all thought it was hilarious and the boss slipped it into the pile to go to the patent office so they could enjoy the joke as well... Some time later the boss came in stony faced and simply said "The patent for the steering wheel. No one ever jokes about it again. Ever. Period." then walked out. Seems it was the only patent that stood up to scrutiny.... All the rest were rejected... So, the owner of the "Timezone" amusement centers around Australia formally owned the patent on every electronic steering wheel that controls a vehicle... Ever invented. Anywhere. Even if it uses mechanical linkages. Especially if it was in the shape of a circle, but it also counted if was a joystick that could be moved through a "virtual circle"... Not that it didn't stop the engineers rolling around on the floor laughing for a few minutes when I told them all. Yep. another literal joke patent... And to their credit, they all kept a straight face when the "Big" boss came in to congratulate us all.


  • Re:Laches (Score:5, Interesting)

    by TheRaven64 ( 641858 ) on Tuesday August 17, 2010 @05:12AM (#33273446) Journal
    Not quite true. You can't collect any damages for infringements that occur between noticing and sending them notification of infringement. You can, however, wait until they're shipping a million units a day and then demand that the court awards an injunction to make them stop shipping, at which point they don't have much option but to give in to your royalty demands.
  • by TheRaven64 ( 641858 ) on Tuesday August 17, 2010 @05:18AM (#33273466) Journal
    Which makes OIN rather meaningless. Linux is a tiny part of any Free Software system. In terms of binary size, it's easily dwarfed by the C and C++ standard libraries; X.org, various toolkits and so on make up a bigger blob. People have been using 'Linux' as a term to describe this entire system (and shouting down people who say GNU/Linux because 'Linux is the important bit') for so long that it's easy to forget this. If the patent pledge only affects Linux, then it doesn't cover 90% of the code on a typical Linux system.
  • by bysin ( 173686 ) on Tuesday August 17, 2010 @05:20AM (#33273474) Homepage

    "There was even an unofficial competition to see who could get the goofiest patent through the system."

    I believe this is how Amazon's 1-Click patent got started.

  • by Trevelyan ( 535381 ) on Tuesday August 17, 2010 @05:27AM (#33273496)
    TED had an interesting talk [ted.com] about patents and innovation from the perspective of the fashion industry, in comparison to the software industry. The point being that the fashion industry has no patent protection, is full of innovation and makes a bucket load of money.

    The reasons why the fashion industry wasn't allowed patents is also interesting, I would say the same arguments could apply to software.
  • by Confuse Ed ( 59383 ) <edmund@@@greenius...ltd...uk> on Tuesday August 17, 2010 @05:34AM (#33273522) Homepage

    I was at the london science museum last week and saw something interesting on the information board regarding one of the steam engines on display. Unfortunately I didn't think to take a photograph / transcribe it, but this blog gives a summary: http://www.currybet.net/cbet_blog/2006/08/engineering-parallels-at-the-s.php [currybet.net]

    To quote the blog's transcription of the caption:

    In 1769, James Watt had taken out a patent that allowed him to dominate steam-engine design and improvement. As a result, other engineers were prevented by law from developing new, alternative designs."

    When the patent expired other engineers were able to innovate again, particularly Richard Trevithick. He experimented with using steam under a much higher pressure, and as a result was able to build smaller and more powerful engines, which enabled him to build the first locomotive railway engine capable of hauling a load.

    So even the science museum is suggesting that patent's stiffle innovation, and have been doing so for over 200 years

  • by Anonymous Coward on Tuesday August 17, 2010 @05:54AM (#33273604)

    Ok, there's something I've always wanted to ask an engineer who accepts the patent system: Do you regularly spend time reading new patents issued in every major market area, just to make sure you don't unintentionally infringe on whatever your competitors patented? Don't you need a patent attorney to make sense of the legal scope of the patent text? Or do you simply develop your own technical solutions like the rest of us, and let your bosses worry about the risk of infringement lawsuits?

  • by mcvos ( 645701 ) on Tuesday August 17, 2010 @06:02AM (#33273652)

    Gosling is obviously stating that Microsoft is a horrible company, but the rest of the industry has become so much worse recently that Microsoft seems benign in comparison (i.e., it is a sad truth).

    It's true. I admit I've recently been thinking less bad about Microsoft. I'm not going to be a fan any time soon, but MS seems to have remained rather stationary on the Evil scale (possibly even edging slightly away from the evil end, but that might be an illusion), while everybody else seems to be in a hurry to overtake them and dive off the deep end of the scale.

    10 years ago I didn't think it was possible, but in the mean time many companies have proven that it is indeed possible to be far more evil than Microsoft.

  • by aaaaaaargh! ( 1150173 ) on Tuesday August 17, 2010 @09:20AM (#33274850)

    This is a problem with the patent system, not with software patents themselves.

    That is not true at all. It is a problem with software patents. They are a scandal. Hardware patents have worked well in the past, because hardware development is completely different from software development. By the Curry-Howard isomorphism a large part of mathematics is software and can nowadays be patented. This fact alone speaks rigorously against software patents, but has been ignored with pretty lame excuses by lawmakers and jurisdiction since attention was drawn to it. In fact, various parts of mathematics already already have been patented as we speak. Moreover, writing software mostly consists in assembling together various pieces, subroutines, and algorithms to achieve some goal, as Richard Stallman rightly said it is a bit like building with Lego bricks. When there are thousands of software patents covering all aspects of an application it becomes completely impossible to write and publish even a non-innovative program, not to speak of a true innovation, without potentially violating hundreds of patents. If the current trend is not reversed, the idea of having a universally programmable device at home will become obsolete in future, because it will simply be illegal to write your own software.

    The funny, or perhaps better to say ironic, aspect of software patents is that even the big players cannot have an interest in them in the long run. Right now, they can innovate and use software patents to ensure mutual destruction and for patent trolling. But if the number of software patents keeps growing even the big players will have their possibilities for innovation blocked entirely within a few decades. Software patents are a time bomb that is going to explode not within the next few years but within a foreseeable future. Unfortunately, neither politicians nor many end-consumers (=voters) are able to get this into their brains, because it takes a (small but significant) amount of experience with software engineering and knowledge about the foundations of computer science to understand the issue.

    For a shareware author like me the situation is already devastating today. As long as I do not have success, I can sell whatever I like. However, having success would invariably mean that I'd get sued for infringement of *some* patent I have never heard of and subsequently loose everything. The same applies to any and all individual software authors, FOSS projects, and small companies, because existing software patents already cover many aspects of programming (GUIs in particular). It is an absolute scandal that software patents have been allowed in the first place, and the process has to be reversed by all means. The vast majority of people that argue for them are forced to do so, because they are on the payroll of a large company that holds software patents. It's as simple as that.

  • Re:Laches (Score:4, Interesting)

    by OeLeWaPpErKe ( 412765 ) on Tuesday August 17, 2010 @10:37AM (#33275658) Homepage

    If I held a software patent for a program that measured how many times the Spacebar button is pressed, I cannot be held from collecting damages under the laches rule because it is unreasonable to expect patent holders to troll every piece of software in search of patent infringement. The courts cannot reasonably accept the argument, "Anonymous Coward did not find the patent infringement within X number of days within Windows 7's launch, therefore he should not be allowed to collect damages."

    And yet they hold people to the opposite. When anyone writes a piece of software they are supposed to
    1. search the entire patent database (that excels in clarity *cough*)
    2. check to see if this covers their program
    3. either contact the patent holder and negotiate a license -or- program "around" it (insofar that's possible)

    Is that reasonable ?

    According to Lawrence Lessig, the "hello, world" program violates at least 15 patents. Surely any other program violates at least those same patents, plus potentially dozens or hundreds of others. Is that reasonable ? Or is Lessig lying ? (he is a lawyer, you know)

    And if you don't do this you become liable for retroactive damages ... this is not reasonable, surely you see that.

    How about we make the following addendum to patent law : anyone is free to send a description of an invention (source to a program, designs, ...) to the patent office, which then for 15$ and within 14 days has to list all patents that cover that invention, and that list is binding upon the courts. If they do not respond within 14 days, the program is considered not to violate *any* patents, and this is equally binding upon all the courts.

    Quite frankly, that rule should be extended to the entire law system.

    This is typically government style doing : they pass laws, which leave large gaps in interpretation. So anyone on the street does not even have the possibility to know if he is or is not violating the law. You'd think that he could ask the government if something is wrong or not, but he can't. Government wants to impose rules, but like all tyrants, does not feel the need to explain them. Obviously one needs to be able to ask these questions, and get a response, for free, within a reasonable timeframe.

    And if the government cannot provide this service, quite frankly, they should leave making laws to a more capable organization, or simply have less laws.

  • by Benfea ( 1365845 ) on Tuesday August 17, 2010 @12:03PM (#33276774)

    Now you're stretching it. While it is obvious that Rupert Murdoch's media empire is nothing more than a multibillion dollar propaganda business for American conservatives and the Republican party, to claim that they are doing this at the behest of China is just being silly. They would be doing this with or without the influence of China because they mistakenly believe that their actions won't result in America being ground into third world nation status; on the contrary, they think doing these things will make them rich (which technically speaking, it will in the short term).

  • by shadowofwind ( 1209890 ) on Tuesday August 17, 2010 @12:22PM (#33277058)

    Whats next? Entire cultures seeing suicide as something cool that should be tried at least once by anyone?

    In my view that's basically what recreational drug use is, alcohol included. Its just too slow for most people to see it.

    Much of what people do to earn money, like patent trolling, isn't real work in the sense that it actually adds value to the system. It just games the system, making one's own piece of the pie bigger, for a time, while the pie gets smaller. Gradually the system decays. How is this related to drug use? You're more content that your professional life is hollow if you can fill the void with after-hours partying. And the good feeling that real work can provide doesn't mean as much to you if you if you've been finding your good feelings in other diversions. You forget what real accomplishment feels like, and even if you remember, at some point it becomes nearly impossible to find it when the environment you're in is no longer structured towards that ends. But we all need to feel good, so we cling tighter to what has been slowly destroying us, while justifying it.

    Pleasure is the positive feedback your body gives you when you do successful things like eat or procreate. Its like currency for biologically successful behavior. Any activity that gives you significant pleasure without contributing towards your well being in some meaningful sense is poison, because its counterfeit. It doesn't even matter if the thing is chemically addictive or has any other nasty side effects. Just the fact that it feels good but doesn't actually make you healthier dilutes your ability to choose other worthwhile things. Gradually you can no longer find the motivation for honest endeavor.

    Prohibition doesn't fix the problem - it creates crime, particularly in weaker economies that supply the drugs. Puritanism doesn't fix it. Where does one draw the line? Recreational sex? Video games? Chewing gum? Music? We have to proceed from where we are, and trying to go cold turkey on vanity would make most of us deathly miserable. But at least understanding our situation a little better helps I think.

The only possible interpretation of any research whatever in the `social sciences' is: some do, some don't. -- Ernest Rutherford