Software Patents Are Crumbling, Thanks To the Supreme Court 118
walterbyrd writes: In June, when the U.S. Supreme Court invalidated a software patent, many in the tech industry hoped it would be the beginning of sweeping changes to how the patent system handles software. Just a few months later, lower courts are making it happen. Quoting Vox: "By my count there have been 10 court rulings on the patentability of software since the Supreme Court's decision — including six that were decided this month. Every single one of them has led to the patent being invalidated. This doesn't necessarily mean that all software patents are in danger — these are mostly patents that are particularly vulnerable to challenge under the new Alice precedent. But it does mean that the pendulum of patent law is now clearly swinging in an anti-patent direction. Every time a patent gets invalidated, it strengthens the bargaining position of every defendant facing a lawsuit from a patent troll."
Meanwhile, the Washington Post reports on alleged corruption in the U.S. Patent and Trademark Office.
Double-edged sword (Score:2, Funny)
...but it decreases the incentive for people to make innovative software
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Nope
GNOME 3 is very innovative, and is built with no patent incentives.
Re:Double-edged sword (Score:4, Funny)
Grandparent didn't say, the incentives are eliminated by the ruling. Only that there are fewer now... Still enough for GNOME 3 to be developed, obviously, but, possibly, not as well as it could be.
Re:Double-edged sword (Score:4, Insightful)
You cannot prove that.
I counter that the very high risk of being crushed by patent litigation costs decreases the incentive for people to innovate, and the crumbling of that risk actually increases this incentive.
Re: Double-edged sword (Score:2)
Onthe other hand, incentives might increase. Is there any proof?
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The source of the decrease is fairly obvious — if people can not profit from an activity, they are likely to reduce partaking in it. It goes from being a profession into a hobby.
Now, what would the source of increase be?
Re:Double-edged sword (Score:5, Insightful)
Actually, GNOME3 is a counterexample. I wish Microsoft held a patent on obnoxious tabletized UIs.
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Actually, GNOME3 is a counterexample. I wish Microsoft held a patent on obnoxious tabletized UIs.
M$ may not hold a patent on obnoxious tabletized UIs, but they are definately the World Leader on their implimentation.
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No, innovation is usually good. Without it, we'd never move forward, including having gotten to where we are now. It's just that you need to weed good innovation from bad.
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I think I feel as uncomfortable using GNOME 3 as much as you, but for that matter, I cannot use any kind of desktop environment. So I'm neither a GNOME fan or detractor, I'm just a weird user.
However, GNOME-like environments did provide more than one concepts that were later incorporated in other environments — Including the industry mainstream.Take as an example transparency handling and live window miniaturization (adopted in Windows Vista and 7). The "wobbly windows" and "cube desktop" ideas were l
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It decreases the incentive for some people. There are plenty of counterexamples of unpatented innovative software. I know I know, don't feed the trolls.
The part about "don't feed the trolls" is the important part.
If this shifts the balance of power such that patent trolls see less and less
value in flexing legal muscle things are a win.
True innovation still has merit but if the same obvious to try permutations criteria
that drug inventions are being held to apply we will be better off.
i.e. if a data link is used and a patent for RS-232 is issued it makes no
sense that an RS-485 is novel enough to justify a new patent. Same for
WiFi, Cell data, BlueTooth....
D
Re:Double-edged sword (Score:5, Informative)
No, not at all. People were making innovative software long, long before software was patented. It didn't used to be that patents were applied to software. Patenting of software is a relatively new thing and should not be done. Hopefully we'll see the end of it. The entire patent system is abused and abusive. Time to scrap it and reset.
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IMO, you should be able to patent processes that are based on new technological development, but not the logic/flowpath of the process. Software itself should fall under copyright law.
Copyright law has been polluted by Micky Mouse.
As a result software should NOT fall under copyright law.
It is "Goofy" as heck that each time the Copyright of the old
mouse comes up the bar moves is insane.
http://en.wikipedia.org/wiki/C... [wikipedia.org]
Copyright might cover the text of code as code tells a story of what
is happening but to patent all stories about "Boy meets girl, boy and
girl fall in love, something happens under the covers and they live
happily ever after" is not worthy of a patent or copyright.
Sadly many
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Your Sherlock Holmes example would not apply. Code copyright would be quite simple as it would protect from copying actual code. Coding for a similar purpose would be OK as long as you don't copy. Anyone can write mystery novels that follow basically the same general plotline, we see it all the time, just don't use the same characters, use your own characters. Use your own code or license what you want to copy.
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It already does, but even that can be abused.
In the "Oracle v. Google" trial [regarding Java APIs], Judge Alsup ruled for Google. Google had recreated their software from scratch using the API documents as a reference. That is, they did not use any Oracle/Sun code [except for a rangeCheck function that was less that 10 lines]. Alsup took great pains to write an informed opinion [even learning how to code a little].
However, the 9th circuit appeals court overturned this. One of the worst decisions ever.
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Please.
The intellectually hard work of software isn't the idea. It's almost entirely within the coding.
Re:Double-edged sword (Score:4, Interesting)
That would be true if you could come up with good ideas (not bad or average ones) easily and cheaply, but you can't. You can work as hard as you want, but there's no guarantee you will come up with a good idea.
With coding, you (and a million other programmers) can work hard to come up with the code. Therefore original ideas are more valuable than the code implementing it. The software world is absolutely saturated multiple implementations of a few valuable ideas, with additional, secondary ideas added to improve the product from pre-existing products.
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That would be true if you could come up with good ideas (not bad or average ones) easily and cheaply, but you can't. You can work as hard as you want, but there's no guarantee you will come up with a good idea.
Pfft - I came up with seven mind-blowingly awesome ideas before breakfast. The problem is that each would take several programmer-years to implement, so there's an enormously high risk:reward ratio for each.
People don't copy other ideas because it's too hard to come up with their own good ones. They copy ideas because those ideas have already been vetted and proven viable in the marketplace (whether of ideas or of cash revenue).
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That would be true if you could come up with good ideas (not bad or average ones) easily and cheaply, but you can't. You can work as hard as you want, but there's no guarantee you will come up with a good idea.
Sez you. You seem to be hung up on the "coding" part. What the GP should have said is "execution." Good ideas are literally a dime a dozen (or with legalization, a dime-bag a dozen). But execution, which includes coding but also a whole lot more like business plans, marketing, capital, etc, is the hard part.
You cannot patent an idea (Score:5, Insightful)
Legal Match [legalmatch.com] explains:
You can patent pretty much anything under the sun that is made by man except laws of nature, physical phenomena, and abstract ideas. These categories are excluded subject matter from the scope of patents.
What Are Abstract Ideas?
Abstract ideas are concepts like pure mathematics and algorithms. You cannot patent a formula. However, you can patent an application of that formula. Thus, while you cannot patent a mathematical formula that produces nonrepeating patterns, you can patent paper products that use that formula to prevent rolls of paper from sticking together.
In the legal world it is widely accepted that ideas and algorithms cannot be patented. The reason we have/had software patents at all is that despite Bill Gates once saying that it would have been impossible to create Microsoft if software were patentable, Microsoft (and others I imagine) gave the courts a bull shit argument that since running software affects the physical state of the machine it is running on, software is more like a physical object and less like an idea or algorithm. Since the judges knew next to nothing about computers they accepted this bullshit argument hook, line, and sinker.
The problem with Microsoft's argument is that different implementations of the same algorithm create different physical configurations (electrons and so on) of the hardware. Likewise different CPU architectures create different physical configurations and so on. Microsoft's argument ends up with a patent that protects all possible implementations of a algorithm on a computer which is indistinguishable from patenting the algorithm itself.
That incredibly ill-informed and stupid decision opened the floodgates for "... on a computer" patents. The Supreme Court is now trying to rectify that mistake. Abstract ideas cannot be patented. Mathematics cannot be patented. Algorithms cannot be patented. However you can protect the expression of an algorithm by using copyright to protect your particular implementation. You cannot protect all possible implementations of an abstract idea.
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There are many types of abstractions. Patents in general (not just software patents) are an abstraction of multiple implementations that competitors might create to forgo not paying licensing fees or break the patent owner's monopoly. Just because something is abstract does not mean it's non-patentable.
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Software is not a machine, it is a set of instructions for a machine to execute. In this sense it is identical to a recipe, which is not patentable. It is however subject to copyright, which comically enough has longer terms of protection than patents do under current US law.
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You can not copyright the ingredient list in a recipe.
You can copyright the instructions.
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Therefore Microsoft is right in claiming that software is in fact like a physical machine (since the 1s and 0s of software are real whereas your abstract ideas can't be clearly represented like that) that controls another physical machine (the CPU).
Fine. Then the patent only covers one configuration of ones and zeros that implement the algorithm (corresponding to one physical machine), not every possible configuration of ones and zeros that implement the algorithm (which correspond to an infinite number of different machines). This means the patent is only good for their source code with their compiler with their set of compiler optimizations on one specific CPU architecture. They would be far better off using copyright instead.
The leap you mak
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followed by new patents on the same old ideas for "... on the web", "... on a smartphone", etc.
Re:Double-edged sword (Score:5, Insightful)
Please.
The intellectually hard work of software isn't the idea. It's almost entirely within the coding.
When it comes to really ground-breaking stuff it is often the idea, but in those cases the idea belongs (and usually comes from) a paper published in a math or computer science journal or a journal from an adjacent field. It would probably not be a good idea to allow people to patents mathematical truths.
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The intellectually hard work of software isn't the idea. It's almost entirely within the coding.
Good ideas usually come in a flash, so they appear to be "cheap." However, they are also usually the result of trial and error over and over again and being deeply entrenched in the field.
Reality Check (Score:5, Insightful)
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The way it works is not relevant: What matters is that, if I am writing code under a patent system, I am at risk of doing something that has already been covered by a patent. I can check for patents related to what I am doing, which is a major drain in productivity, and will increase penalties if it goes to trial and I am infringing, or I can code without looking, and be at risk that I am reinventing something that I never knew about.
It's those costs, or the uncertainty that comes from acting as if the risk
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So rounded corners were a unique invention and we never saw them on cupboards or counters before Apple received a patent for them? I know, a status bar is unique from a pressure gauge? Menu systems never existed until computers? Boolean operations never existed prior to computers and Microsoft was the first in history to use "if not then" form of logic?
Good grief, you anonymous cowards that attempt to support and maintain a broken system are the true Slashtards. If you don't understand the fundamental d
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It doesn't decrease the incentive to produce software nearly as much as the threat of being sued for violating patents that never should have been granted. There's plenty of software out there that attracts customers by being good and doesn't need the threat of patents to succeed.
Re:Double-edged sword (Score:4, Interesting)
No, it increases it. There's a half dozen ideas I have on the drawing board that I could never touch, because I know it comes too close to filed patents on a dozen issues and I could never protect myself in court. This makes it easier to explore these ideas. If anything, this will lead to more pushing of the boundaries and combining of good ideas to make great software, and fewer people sticking to safe ideas because there's no patent issues.
Re:Double-edged sword (Score:4, Interesting)
It's my firm belief that one cannot write any software of any moderate to large size without inevitably running afoul of some software patent. There are only two things that protect any developer:
1. Distribution of their software is sufficiently small that it escapes the notice of patent trolls.
2. Being a large company with a legal department capable of dealing with patent threats, and a bank account big enough to buy them off.
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Re:Double-edged sword (Score:5, Insightful)
As an independent software developer, I'd feel much more relieved if software patents were completely abolished. I *know* I'll never willingly infringe on someone's trademark or steal their source code. Those are things that are simple enough to check for. However, software patents are a ticking time bomb waiting to explode in your face. The sheer number of them and the impossibility of easily searching for them means any significant piece of software I write has a high likelihood of infringing on someone's patent.
At the moment, software patents are really nothing but legal nuclear missiles. Every company of significant size has to keep a significant arsenal in order to prevent getting nuked by others. So, now instead of mutually assured destruction, we have "cross-licensing". And you have the patent trolls (arms dealers) who simply leech profits from the legal system by amassing quantities of patents on the cheap, and them attempting to sue "infringing" companies, hoping that a settlement will be cheaper than a legal battle, and the damned thing is, it often works, perpetuating the whole sordid system.
Honestly, I'm not really even generally opposed to the concept of patents, or even of software patents in general. My stance is a more pragmatic one: I feel that we've seen demonstrable evidence that software patents have done a significant amount of harm to our industry, and I've seen no real evidence that the industry benefits in any real way, save for those few people that directly benefit from the "industry" around patents themselves. The government has proven itself absolutely inadequate to the task of judging the merits of these patents in a responsible way, and as such, I think we need to either revoke the ability to patent software altogether, drastically shorten the patent length, or put into law a much, much higher bar for new software patents.
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I stand by my statement that parents haven't been good for the industry. I wouldn't be surprised if Amazon has spent more on fighting patent-related lawsuits than they ever received in royalties from their own patents. Bezos himself has famously expressed his doubts about the current patent system both many years ago, and again more recently. Having entered the cutthroat world of mobile devices, I can imagine the patent minefield there is a pretty massive headache for them, as it seems to be for other ma
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...but it decreases the incentive for people to make^H^H^H^Hstifle innovative software
FTFY.
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Abolish patents. They were originally created to protect small companies from big ones and so simulate inventions. Today all signs point that small companies are more likely to be disadvantaged by patents held by big companies or trolls. Whatever inventing is happening seems to be despite the patent system, not because of it. So in ideal world, you'd make a poll of small companies -- those that the law intends to protect -- whether they would prefer to have the patent system preserved or not, then decide.
Software Business Methods are in danger (Score:1)
If it's a "software patent" where it's really just a financial transaction with an "on a computer" part added, then it's in trouble.
However, lots & lots of patents that include computing systems where software is in the mix will be perfectly fine as long as they are actually directed to technological improvements as opposed to business method + computer claims.
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If you accept quantum theory (and just try to disprove it) then the perceptible universe is cannonically isomorphic to a subset of mathematics. If cannonically isomorphic isn't close enough to identity for you, I'd like an explanation of why not. (Well, except that several different things can have aspects that are cannonically isomorphic to the same thing...but perhaps that's just a way of saying that they have certain features that are essentially identical.)
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If you accept quantum theory (and just try to disprove it) then the perceptible universe is cannonically isomorphic to a subset of mathematics. If cannonically isomorphic isn't close enough to identity for you, I'd like an explanation of why not. (Well, except that several different things can have aspects that are cannonically isomorphic to the same thing...but perhaps that's just a way of saying that they have certain features that are essentially identical.)
Spelling counts, mister Cannon.
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OK. Sorry. Make that "canonically isomorphic".
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print Hello World
The above statement is speech. Now math may be used to transform that statement into 1 ands 0's. More math can transform it into a commands that cause Hello World to be printed. But the code itself exists separate from that implementation. In math there is no "hello" there is no "world". Placing hello next to world has no meaning in mathematics. This is speech.
Every time a patent gets invalidated (Score:5, Insightful)
Every time a patent gets invalidated ... a developer gets their wings. :-P
There may be some things which truly are inventions, but so many software patents come down to "a system and methodology for doing something which has been done in the real world for decades, but on a computer". And then someone comes along and patents the exact same thing on a tablet. And on a cell phone. And soon, on an iWatch.
There's no net-new invention, just an implementation of something which has been seen before.
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There may be some things which truly are inventions, but so many software patents come down to "a system and methodology for doing something which has been done in the real world for decades, but on a computer"
Because patents are on processes, not products. That's always been the case. Sorry if that busts your bubble but it's the way it was set out from the start.
There's no net-new invention, just an implementation of something which has been seen before.
Yeah, because moron
Industry Needs Self-Certification or Academy (Score:3)
real problem is patent and copyright length (Score:4, Interesting)
Particularly small patent holders that present ideas to big companies, hoping to be bought out, but instead get the shaft.
Honestly, the real problem is that patents last too long.
If you can't make your profit in 5 years, then your product was never very good in the first place. In that time, you should be able to 'corner the market', develop a brand - including the reputation for quality, and most importantly, learn business secrets that will give you a leg up against the competition.
After that time, you are just holding back other people from improving your product.
Perhaps we need a graduated patent system. Most patents would get 5 years, particularly impressive products get 10 years, and entirely new products that create new types of businesses/industries get 20 years. That is, an improvement to a cellphone gets 5 years, but the creation of a cell phone gets 20 years.
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This is part of the problem: the same time for everything.
Software on the internet for sale tomorrow? 5 years.
New machine that it will take 1 year to mass manufacture? 5 years.
New drug with 10-15 years of clinical trials*? 5 years.
*http://www.cancerresearchuk.org/about-cancer/cancers-in-general/cancer-questions/how-long-does-it-take-for-a-new-drug-to-go-through-clinical-trials
Re:real problem is patent and copyright length (Score:4, Informative)
The basic idea of having drug patents start from the date of invention rather than the date of first legal sale is itself ridiculous. Worse, the idea of just 'extending' the patent length for them is pretty stupid, but the absolute WORST idea is to design the rules for ALL products based on this one industry. The only reason it is not done reasonable is because then non-medical community loves to use the problems with medical patents as an excuse to grab money for non-medical patents.
Re:real problem is patent and copyright length (Score:5, Insightful)
The weakening of patent protections mean some small guys will be killed.
Particularly small patent holders that present ideas to big companies, hoping to be bought out, but instead get the shaft.
Nope. A patent is a license to sue. Small players rarely have the resources to do so. A very small number take the risk, fewer still manage it successfully. Pointing to one or two cases where small players were successful is not an argument. You have to look at all patents held by small players, find out how many get violated and what fraction of those use the courts or plausible threat of legal action to defend themselves.
I don't have the numbers, but from an insiders perspective (I am a small patent holder and have worked for a number of small players with patents) I can tell you that the average small player is very unlikely take court action, and that the average large player is unlikely to be much bothered by a threat of patent litigation from a small player, because they know they can simply exhaust the small player's resources.
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Particularly small patent holders that present ideas to big companies, hoping to be bought out, but instead get the shaft.
But this isn't really the business model in software though. I only know of software companies that make actual software products. I don't know of any software companies that do software R&D, patent their idea, then sell it to a bigger company. The reason for this is that the barriers to creating a finished software product are really low compared to other industries like hardware and biotech. So if you have a phenomenal idea, you are usually capable of implementing it. Not so true in biotech, wher
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I wish I had a gold dollar for every random length of time I've seen assigned to patents or copyrights. But this is amazing. THREE arbitrary lengths of time in yet ANOTHER patent/copyright reform post.
Do yourself a favor and look up all the other posts that came before you. Everyone has some length of time that they think is best, but no one has any reason for it. Because there is no reason for it.
While at the same time, the patent/copyright forever movement has 1 unified goal. Anything closer to forev
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"If you can't make your profit in 5 years, then your product was never very good in the first place."
I could think of several exceptions to that. Music that was way ahead in style for the time and age in which it was produced is just the first one that pops into my head at the moment. Need coffee.
Other side of the story. (Score:4, Insightful)
When Arstechnica ran that WP story about corruption in the USPTO, several current and past patent examiners posted comments [arstechnica.com] that are worth reading. Two key ones in particular are this [arstechnica.com] and this [arstechnica.com].
Short story is that USPTO has stupid counterproductive performance metrics, so everyone games the system to look good by the metrics (we've all seen that before). Some managers recognize this and don't want to be assholes about time charging rules because of it, as long as employees are doing good work. Others get upset that the rules are being broken and assume it is blatant time card fraud, and blew the whistle to the news outlets.
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In my opinion, its probably one of the most meritocratic agencies in the entire Federal government.
Sure...until someone figures out that if you just stamp the application Approved or Rejected without reading it, you can process it much faster and get a bigger bonus. Perhaps their system would catch that particular problem, but I'm sure that there is some way to cheat on doing the work in favor of getting faster completions. I'd rather encourage good work than quick work. Unfortunately, it can be hard to distinguish good work from bad work. Quick is easier to measure but not nearly as valuable.
The par
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Your title implies that there are two sides to every story. There are not. There are seven sides to most stories, with some stories acquiring four additional sides when no one is thinking about them. The remaining stories that don't fit this model almost without exception have 3.6 sides.
Wails of the tormented (Score:4, Funny)
The best part is hearing the lamentations of software patent attorneys [ipwatchdog.com] and rejoicing in the sounds of their despair.
Alice does nothing to stop software patents (Score:2)
The Alice decision stops the patenting of certain methods of using software (which some of you above are calling "business methods") that are not limited to certain computer configurations. An invention that includes a computer having software configured to perform certain well-defined steps is still patentable subject matter. The submitter (walterbyrd) and many others of you posting here apparently don't understand the distinction.
I will have no problem getting my clients patents to software inventions in
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I would be pleased to offer you a reply to your unsupported mastications, but unfortunately I require that I be paid in advance.
Apparently you don't understand how lawyering works: the greater the controversy, the more people involved want us to work for them. With views such as yours out there, I'm confident I'll have work for a long, long time...
In the meantime, in EU (Score:3)
The European Commission fought like hell to push software patents, and now they vanish in the US... nothing happen anymore.
That suggests the only motivation for software patents in EU was to have legislation on par for TAFTA.