EFF Proposes a Working Code Requirement For Software Patents 130
Juha Saarinen sends news that the Electronic Frontier Foundation has proposed a fix for software patents in general and patent trolls in particular: requiring applicants to provide specifics about their solution. They say the applications should include working code, or at least "detailed, line-by-line notations explaining how their code works."
"And if they do get a patent, they should be limited to the invention they claimed. We think software patents are bad news, and incredibly harmful to our society and economy. We wish we didn’t have to deal with them at all. But by fixing the functional claiming problem, and limiting patentees to a narrow invention that they actually came up with, we would also limit the amount of harm those patents could cause. The Patent Office does not (yet) have the power to get rid of software patents entirely, but it can fix the functional claiming problem."
Incidentally (Score:5, Insightful)
This would also allow people who did license the patent to use the code rather than having to re-invent it themselves from scratch, or for that matter people coming along when it had expired...
Hang on isn't that half the point of the patent system? To grant a monopoly on an invention for a limited time in return for providing sufficient information in sufficient detail such that said invention can be replicated when the patent expires?
Once you have working code . . . (Score:5, Insightful)
If someone else independently can implement code that does the same thing, then it is obvious it should not be eligible for a patent.
Solutions, not problems (Score:5, Insightful)
The majority of the software patents I've seen are simply a statement of a problem, not a solution. They do nothing to promote the progress of science, and as such should not be considered valid patents, and the laws should be changed to make them not valid patents.
Following the EFF's proposition would be a good way to make sure that your patent states a solution and promotes the progress of science.
Re:Incidentally (Score:5, Insightful)
If I can re-implement it without any reference to the patent, and possibly without even knowing that the patent ever existed in the first place, then we're talking about something so obvious that it should not be eligible for patent protection.
Doesn't "slay" trolls entirely (Score:3, Insightful)
Re:Interface patents (Score:4, Insightful)
Re:Once you have working code . . . (Score:3, Insightful)
Two practically simultaneous independent inventors should be evidence of obviousness.
Peripheral Claiming (Score:3, Insightful)
The United States uses a system called "peripheral claiming," in which patent applicants stake out the outermost boundaries or periphery of their claimed invention. This is in contrast to the older (think the 1800s) system of central claiming, where the applicant would claim the "heart" or "gist" of the invention. The problem with central claiming is that courts had to decide when an alleged infringer got "too close" to the claim, which was often a very subjective process. With peripheral claiming, the infringer either has each and every element of the claim or they don't (with a small amount of wiggle room for the doctrine of equivalents). This forces the applicant to say, up front, exactly what they've invented and—importantly—support it in the specification.
Over time, however, there has been a perceived (and perhaps real) growth in the number of patentees trying to make their claims cover more than they actually invented. This is what the written description and enablement requirements in patent law are designed to prevent. See 35 U.S.C. 112. I have said many times on Slashdot and elsewhere that these requirements should be tightened. What the EFF is proposing is, broadly, along those lines, though it is specific to software patents. I am generally not in favor of special rules for different areas of technology. Patent law has mostly avoided that. Copyright law has not, and it has turned the copyright statute into a sprawling mess dictated by special interests.
If the written description and enablement requirements were tightened up, however, then one way that computer-implemented inventions could demonstrate compliance (i.e. show that the application contained "a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains ... to make and use the same") would be to provide extensive source code or pseudocode examples. But in our zeal to rein in unsupported functional claims we should not return to central claiming.
As an aside, right now many if not most patents that involve software use flowcharts rather than pseudocode or source code. This is the result of Patent Office backwardness dating back to its initial opposition to allowing patents on computer-implemented inventions in the first place. Only now is the Patent Office finally recognizing that pseudocode or source code is much more searchable, readable, and useful for everyone involved, including patent examiners, competitors, and alleged infringers.
Re:What about complex software? (Score:4, Insightful)
It sounds like you're talking something you would work an entire career on from the time you're young until the time you're old to have something working. ("man-decades") Even if we're talking 2 man-decades == 20 man years, that was done as 20 people for 1 year, it does not seem unreasonable to have a working model. That had been true for non software inventions. I remain skeptical it would take 20 people a year to build a simplistic working model of even an advanced idea. The working model doesn't have to be the most efficient implementation of the idea. It just has to illustrate an advance in the state of the art.
Yes, I know you are identifying a possible problem caused by the proposed requirement of working code. But the EFF proposal is to fix a much more serious and widespread problem that is real and not hypothetical.