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Federal Patents Judge Thinks Software Patents Are Good 171

New submitter Drishmung writes "Retired Judge Paul Michel, who served on the Federal Circuit 1988-2010 — the court that opened the floodgates for software patents with a series of permissive decisions during the 1990s — thinks software patents are good. Yes, the patent system is flawed, but that means it should be fixed. Ars Technica have a thoughtful interview with him. Ars' take: 'If you care most about promoting innovation, offering carve-outs from the patent system to certain industries and technologies looks like a pragmatic solution to a serious problem. If you're emotionally invested in the success of patent law as such, then allowing certain industries to opt out looks like an admission of failure and a horrible hack.'"
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Federal Patents Judge Thinks Software Patents Are Good

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  • Re:Bugs are good (Score:5, Interesting)

    by xonicx ( 1009245 ) on Monday May 14, 2012 @07:06AM (#39993085)
    Bugs are good!
    -- software engineer paid for maintenance
  • by Anonymous Coward on Monday May 14, 2012 @07:12AM (#39993107)

    It's a balance between damage and benefit and the balance is firmly in the 'damage' side currently. Throwing more industries into that mess does not a fix make.

    The benefit was to award exclusives in areas where invention cost was high and time to market long. Thus it enables the invention. This is not true of software, where you don't need to build a factory to make the product you just invented, and thus time from invention to market is too small.

    The damage is 1) complex systems can be blocked by individual patents on individual tiny parts, e.g. blocking tablet sales in Germany. 2) none inventors can steal the profits from the inventors using wrongly issued patents, we've seen an awful lot of those. 3) Some markets are dominated by trade secrets making wrongly issued patents the norm rather than the exception. Software being an example of that. 4) If an invention requires extensive investment, it is easier for people to land mine around it.

    He really has to live in the real world here. You can't pretend the conditions for one thing are the same as another just because it lets you use one set or rules to govern both. Water is not steam, and you can't use a bucket to carry steam just because you happen to like buckets. But you can get awfully burned trying to carry steam in a bucket.

  • by MikeRT ( 947531 ) on Monday May 14, 2012 @07:42AM (#39993237)

    We pressed him on this. Michel conceded the problem was less that it was too anecdotal and more that he disagreed with the book's premise—that high litigation costs were a sign the patent system wasn't working.

    If the cost of enforcing the patent equals or exceeds the recoverable benefit, you have just conceded the fact that the benefit no longer carries more than marginal economic value to the alleged beneficiary. The best that could be said here is that it distracts a competitor. The worst (and probably closer to reality) case scenario is that the pursuit of marginally valuable patents creates a perverse incentive that distracts a company from more useful economic activities.

    It's really hard to take seriously someone who says they're all about facts and figures, but then jettisons economics because the economic aspects of his preferred system are abysmal. There will come a day, at the rate we are going, where the rule of law will be formally dead in the US similar to how it is in Russia because the legal profession (and judges and prosecutors in particular) have made the cost of participation so high from various factors ranging from failing to sanction frivolous lawsuits and criminal charges, to allowing blatant corruption. As it currently stands, it's on life support.

  • by sproketboy ( 608031 ) on Monday May 14, 2012 @08:13AM (#39993349)

    But their duration should be shortened to 2 years to account for time to manufacture. The patent system was developed for physical devices which historically could take years to manufacture. Software is out the door in 6 months.

  • What is happening in China is because of central planning, you say?

    No, not exactly. Let me clarify what I mean.

    Yes, what is happening now is mainly due to "the west taking advantage of cheap labor rates", as you put it. However, in order to get here, to be an attractive place for investment, China needed to beef up its infrastructure and production capability. Otherwise, western companies would have looked elsewhere to invest, where they didn't need to pay for laying down the infrastructure needed to support their fabbers (let's talk mainly electronics for now), such as massive power grids and road networks. These were built because the Chinese government said so, and their word is law. If they hadn't, there would have been a vicious circle: investors pass over the area because there's no infrastructure and building it up would be too costly, while no infrastructure is built because there's no need in the first place, since no investors want to invest.
    Heavy industry was built up for a similar reason, although that started back in the Soviet era, in order to supply the rest of the Soviet bloc with the building material they needed. Now it was 're-purposed' to lower the initial investment cost by supplying nearly-free building materials to build factories, foreign or domestic.
    Let me draw a parallel: IPv6. No/few routers support it, because there's no demand for it, and there's no demand for it, because ISP-s don't offer it. Why don't they offer it? Because there are no routers with built-in support, since there's no demand for it. Vicious circle of no demand-no support.

    So yes, in a way, you are right, what is happening now is due to the west. But the root of the situation does lie in the effects of central planning, going way, way back.

  • Think of all the ways that we could make laws neat. To paraphrase the judge "We know that the statutory rape law is sometimes misused and that's a shame. But I think that broad polemical exclusion of all cases where the couple are married is not the way to go".

    Sometimes you need exemption to a law.

    It's funny you say that... Marriage was an exemption to rape for years, and years, resulting in a lot of raped, abused wives. Sometimes, your exemption has unforeseen and horrible consequences.

    In this case, saying "software is exempt from patent law" would result in large companies copying projects from small inventors and never paying them back. And they wouldn't be doing this to each other, either, because all of those big companies' software would go closed source, black-box implementations. Trade secrets for everyone... everyone without an espionage budget, that is.

  • by Kirth ( 183 ) on Monday May 14, 2012 @08:49AM (#39993591) Homepage

    I don't see anything to justify "software patents" in the first place, and actually, patent law forbids it. Everyones.

    Just because some idiot lawyers redefined "software" as not being "math", because they couldn't grasp the math isn't enough reason to not ditch illegally granted patents.

    There is nothing to "opt out"; the situation with these illegally granted patent just needs to be resolved.

  • Re:Exactly (Score:4, Interesting)

    by CastrTroy ( 595695 ) on Monday May 14, 2012 @08:57AM (#39993635) Homepage
    While I think that there are many lawyers profiting from software patents, I'm not sure that any corporation (except law firms, which are usually not corporations, usually limited liability partnerships) would claim to be "benefiting financially" from the current state of software patents. Perhaps a couple patent troll "corporations", but nobody who is seriously involved in the development of software products can claim that software patents are a good thing. At the end of the day, all the legal services they have to pay for to defend and file their patents are just a really big cost center. It stifles innovation, and it stifles change to have all these patents floating around. I'm not really against software patents in principle, but in practice, they just don't work. It doesn't seem that there is enough expertise in the patent office to ensure that bad ones don't slip through (although the same could probably be said for most patentable things, since all the really simple stuff has been patented, and the only stuff left to patent is quite obtuse stuff, which, although it may already be in use in standard industry, I doubt many patent clerks would be able to determine if something was truly novel, without spending a lifetime in the field). Some major changes would have to be made to the patent system for software patents to work at all. Probably better to just drop them all together until we find a model for patenting software that actually makes sense.
  • Re:In other news (Score:1, Interesting)

    by RabidReindeer ( 2625839 ) on Monday May 14, 2012 @09:20AM (#39993817)

    OK, let me paint another target on myself for all the knee-jerkers to reflexively pelt with garbage.

    As a creator, I am not totally against the idea of patentable software concepts - provided that the concept in question is actually unique and not just a "done-this-forever" + "On the Internet" type of patent. It has to actually be a new and novel concept.

    However, even in cases like that, the traditional patent terms are not a good idea. As a user and a designer of other people's ideas, 17 years is whole geological ages where effectively no one else can build on an idea if the patent-holder won't license on affordable terms. I'd go for a maximum software patent lifespan of 5 years, non-renewable. If you can't retire wealthy off that, your idea probably wasn't worth patenting and in any event it's time you got off your lazy royalty-collecting butt and thought up some new ideas.

    Or at least that used to be my opinion back when technology wasn't quite so accelerated, our definition of affordable licensing wasn't what we can buy on a Wal-Mart salary, open-source wasn't a factor, and the major players weren't all using patent portfolios as blunt objects to assault people with. Maybe I should just grab a torch and pitchfork and do some knee-jerking myself.

  • Re:In other news (Score:3, Interesting)

    by MobyDisk ( 75490 ) on Monday May 14, 2012 @10:28AM (#39994427) Homepage

    1. Read Slashdot headline
    2. Become outraged
    3. Furiously read comments
    4. See Insightful post and realize summary is inflammatory
    5. Tag story with "badsummary"
    6. Move on.

    I need some more people to do #5 with me. Then the process will become:
    1. Read Slashdot headline
    2. See "badsummary" tag
    3. Move on.

  • by Anonymous Coward on Monday May 14, 2012 @11:31AM (#39995287)

    IANAL but I am a programmer. Judge Paul Michel fails to notice that he is not a software developer, and lacks perspective on the software industry as a whole. Here are four reasons to reject software patents:

    Modern computers are general purpose machines - hence BASIC (Beginners ALL-PURPOSE Symbolic Instructional code). All programs are therefore written within the specifications of the hardware designer. This makes ALL software predictable by those versed in programming and not patentable in the first place.

    Since all software runs on hardware that only understands the values of 0 and 1, it is all reducible to math. Anyone who has taken a digital logic class can attest to this. What you see on the screen is a representation of that math. Dump the contents of the RAM in binary if you want to prove it to yourself. Math is discovered, and therefore not patentable.

    Software patents typically contain no code. The "Inventor" fails to disclose their invention, which should justify the patent being thrown out for lack of documentation. The patent holders, which are increasingly attorneys, are typically unable to actually implement their own patents. This practice discourages innovation.

    Software patents typically make no sense to programmers. If a programmer can not understand the patent, then it does not describe a program. On that basis it should be thrown out.

    We programmers are sick of being harassed by patent attorneys. They are leeches on our business, and have served to stifle innovation in the industry. It is time to fight back. We should earn triple damages if we successfully defend a suit based on bogus patent claims. For instance, Google should be paid $3 billion by Oracle ($1 billion *3) if they win their case. That would put the trolls back under their bridges.

  • Re:In other news (Score:5, Interesting)

    by scamper_22 ( 1073470 ) on Monday May 14, 2012 @11:52AM (#39995551)

    That's pretty dangerous ground you're operating on.

    I think if you value a society based on the rule of law where every person/industry... is treated equally by law, the existence of patents in other industries should carry over to the software industry. You'd have to prove somehow that software is radically different than the rest of the industries.

    The same goes for the other ways in which government operations (safety, quality, national security...). They all extend naturally to new industries.

    As to justify itself... well... that's pretty easy to do. Pretty much any law can be justified. It's just a matter of who gets to judge the justification.

    For example, I happen to think the startup culture is actually bad for long term scientific progress. It prevents science from being seen as a long term career, so who is going to invest in such a field? I think the period we're in right now is we're 'burning' through the last generation of people brought up in the more traditional company environment. It's one of the reasons most grad students in the sciences in the US are not US citizens. I don't believe it is because US citizens are not smart enough... it is that they rightfully see the field as not one worth such a long term investment. For the talent you have, you might as well be a doctor, nurse, teacher, finance person...

    Now that's just my view and not the point of this post... I'm sure people have different views. I'd venture to say most would disagree with me... but what it shows is the amount of discretion in terms of justification. And the more discretion you have, the lower the rule of law is.

    Given my experience in industry... there is little that differs from software. People who claim software patents are radically different... are generally people who just haven't seen chemical or hardware patents. They're just as obvious... as anything you'd complain about in the software realm. The only difference I'd say is that the companies involved in those other industries are used to the whole patent and licensing system. Partly because they are always used to charging for their products (they have to... they're made up of physical parts)... so the licensing is easily built into the cost. They're also more mature fields so there's less activity going on.

  • Re:In other news (Score:3, Interesting)

    by sir-gold ( 949031 ) on Monday May 14, 2012 @01:54PM (#39997107)

    From my understanding of software patents vs. real mechanical patents: a software patent allows you to patent the concept of an action, rather than the action itself. Lets use the standard example of the cotton gin. If the machine had been covered under a software patent you would be able to patent the entire IDEA of ginning cotton (a device that inputs raw user cotton plants and outputs refined cotton) and not just the particular method of getting that refined cotton (which is what was really patented, all those years ago)

    with physical patent, if a machine is already patented, you are still free to build a machine that does the same task, as long as its a different method. but with software you can't do that because there is usually only one possible method.

    Also, software ends up covered by 2 separate IP laws, patent AND copyright, unlike physical machines which can't be copyrighted

    What's next, are they going to argue that books and movies need patent protection too?

"Mach was the greatest intellectual fraud in the last ten years." "What about X?" "I said `intellectual'." ;login, 9/1990