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Linux and all GPL software should move to GPL4, which should be identical to GPL2 with an added clause stating that Microsoft and Microsoft employees may not use any of it.

No need, and it would go against the GPL spirit.

The fundamental idea of GPL is that you should be able to do whatever you want with GPLed code, as long as you make sure that anyone you forward the code can still enjoy the same "whatever you want" freedom that your received. (that last part being the key difference with BSD-like persmissive license).

Restricting an imaginary GPLv4 against microsoft would go against the "to whatever you want" part. (And wouldn't be of any use, Microsoft would simply spin off a separate company to handle such GPLv4 code).

Also, by making mandatory to keep the same freedom to the next in line, GPL is pretty robust against EEE : you can't leverage extensions much if you have to publish them due to GPL, and you can't extinguish something that's freely available.
There's a reason why the older microsoft guard were shitting their pants and calling GPL "cancer" : RMS had designed something that incidentally happens to be completely EEE-proof.

The modifications of further GPL version were just about patching circumventions that some companies have found around the "keep the same freedom to the next in line" part.

GPLv1 made it mandatory to make source available together with the software.
Companies: "here's the code, but you can't legally do anything with it, because it's patent covered and you're violating our IP"
GPLv2 made it mandatory to grant access to the patents, without royalties.
Companies (e.g. TiVo): "here's the code, but in practice you can't really modify it because uploading your mods requires our secret cryptographic key"
GPLv3 made mandatory to provide a way (e.g.: key provided, unlockable bootloader, etc.) to actually be able to use modification in practice.

Currently there's no apparent need for a GPLv4 : no company has invented a way to give you the code, the patents license and the cryptographic keys, but still prevent you from actually modifying the code.

P. How about a reassessment of copyright law in line with patent laws. Works must demonstrate true worth and value to society prior to achieve copyright protection...

Patents are supposed to be novel, non-obvious, and useful. However, as far as I know, to qualify as useful they don't actually have to be any better than, or even as good as, existing free alternatives. The Microsoft FAT patents cover a way of storing long file names that is arguably novel and non-obvious precisely because it is a needlessly convoluted way of doing something that had already been done. In any case, I don't want to see the copyright system based on the patent system, because I think the patent system is even more broken than the copyright system is.

If not for the rise of cloud computing, I would say scrap them both. The patent system only provides a net benefit in the areas of chemicals and pharmaceuticals (Bessen and Meurer, 2008), and I expect government research grants could do just as well. I'm not convinced copyright provides a net benefit at all, since for entertainment it seems to deliver form over substance, which I think we could do without, and for practical works, it takes mind share from free works. However, scrapping copyright would accelerate the shift to cloud computing, which is even worse than copyright.

Bessen, James & Meurer, Michael J. (2008) Patent failure. Princeton University Press. <http://press.princeton.edu/chapters/s8634.pdf>

a "clean room implementation" is not a derived work.

Why do you think that? I'm interested in your legal reasoning (or references to legal reasoning).

BTW: when the JVM-specification was published, SUN declared it an open standard and challenged the public to implement their own variations

I think you're referring to this license, which doesn't apply in Google's case because their version of Java is not even close to meeting the requirements of that license.

Didn't they simply use the harmony libraries as a base which were presumably Apache licenced?

That's a good point, I just checked, and Harmony is Apache-licensed, not GPL. The way they got around it was by doing a clean-room implementation for interoperability purposes. This is allowed as fair use (Sony vs Connectix). (Incidentally, Sun explicitly allowed interoperability as long as it's compatible with their Java: http://en.swpat.org/wiki/Java_... )

Google is likely going to try a fair use defense based on interoperability (probably other defenses as well). That isn't likely to work, see this: http://www.natlawreview.com/ar...

The court also discounted Google’s interoperability arguments on the basis that there was no evidence of the existence of any apps written in Java and running on the Android platform. Rather, the court emphasized that Google’s desire was to capitalize on the fact that programmers already trained in Java’s APIs in order to accelerate its development process.

EU does grant "software patents" (not that there is such a thing a "software patent") Many big software companies file patent applications for all their patents in US, EU, JP, DE, and China -- usually using the exact same application as they file in the US. http://en.swpat.org/wiki/Europ...

Unless you mean Rare as in the trade name of a Twycross-based video game developer that Microsoft acquired, I'm not sure where you're getting the idea that software patents are so uncommon. See All businesses have software patent risk.

I tried to make a more readable version of similar data on this wiki page:

http://en.swpat.org/wiki/Micro...

Help appreciated.

First, it has the implied patent licence that gets created when you give someone something.

Here's the case law for the USA:
http://en.swpat.org/wiki/Impli...

Second, GPLv2 has explicit statements about giving the recipient permission to use, modify, redistribute etc. It doesn't give "copyright permission", it gives "permission", so the distributor has given permission to use, modify, etc. It would be hard for a judge to conclude that the distributor reserved the right to later claim it was illegal to use, modify, etc.

Here are the relevant sections:
http://en.swpat.org/wiki/GPLv2...

(The case law for the implicit patent licence uses the term "sell" rather than "give", because the cases in question were about a sale. Now, yes, there's the possibility that a judge could make this distinction, but my second point about the explicit wording in GPLv2 makes this very unlikely to be a problem.)

First, it has the implied patent licence that gets created when you give someone something.

Here's the case law for the USA:
http://en.swpat.org/wiki/Impli...

Second, GPLv2 has explicit statements about giving the recipient permission to use, modify, redistribute etc. It doesn't give "copyright permission", it gives "permission", so the distributor has given permission to use, modify, etc. It would be hard for a judge to conclude that the distributor reserved the right to later claim it was illegal to use, modify, etc.

Here are the relevant sections:
http://en.swpat.org/wiki/GPLv2...

(The case law for the implicit patent licence uses the term "sell" rather than "give", because the cases in question were about a sale. Now, yes, there's the possibility that a judge could make this distinction, but my second point about the explicit wording in GPLv2 makes this very unlikely to be a problem.)

Mono developer Miguel de Icaza has pledged to continue to add Microsoft's code to Mono saying "Like we did in the past with .NET code that Microsoft open sourced, and like we did with Roslyn, we are going to be integrating this code into Mono and Xamarin's products".

But is that wise? To your point, the Free Software Foundation's reaction to Microsoft's similar 2009 action point to exactly how changing ownership of patents render Microsoft's Patent Promise not to sue useless. This very promise could become the basis for a patent trap. In 2009 Microsoft's promise not to sue was called a "Community Promise" but today's .NET promise not to sue is risky in the same way—it's not (as the FSF rightly puts it) "an irrevocable patent license for all of its patents that Mono actually exercises" and neither is the MIT license Microsoft chose to release their code under.

Looking back at that essay from 2009, we see the FSF warn us (emphasis mine):

The Community Promise does not give you any rights to exercise the patented claims. It only says that Microsoft will not sue you over claims in patents that it owns or controls. If Microsoft sells one of those patents, there's nothing stopping the buyer from suing everyone who uses the software.

Falling into this trap will directly adversely affect your ability to run, share, and modify covered software. The FSF points to a practical way out as well:

The Solution: A Comprehensive Patent License

If Microsoft genuinely wants to reassure free software users that it does not intend to sue them for using Mono, it should grant the public an irrevocable patent license for all of its patents that Mono actually exercises. That would neatly avoid all of the existing problems with the Community Promise: it's broad enough in scope that we don't have to figure out what's covered by the specification or strictly necessary to implement it. And it would still be in force even if Microsoft sold the patents.

This isn't an unreasonable request, either. GPLv3 requires distributors to provide a similar license when they convey modified versions of covered software, and plenty of companies large and small have had no problem doing that. Certainly one with Microsoft's resources should be able to manage this, too. If they're unsure how to go about it, they should get in touch with us; we'd be happy to work with them to make sure it's satisfactory.

Until that happens, free software developers still should not write software that depends on Mono. C# implementations can still be attacked by Microsoft's patents: the Community Promise is designed to give the company several outs if it wants them. We don't want to see developers' hard work lost to the community if we lose the ability to use Mono, and until we eliminate software patents altogether, using another language is the best way to prevent that from happening.

I find it no accident that the built-to-be-business-friendly "open source" language is all over this announcement including the aforementioned blog post from a prominent endorser, while the wise warnings of falling into a patent trap come from the FSF who consistently looks out for all computer user's software freedoms—software freedom being the very thing that "open source" was designed never to bring to mind (see source 1, source 2 for the history and rationale on this point).

With regard to this, one helpful thing in the ruling is that the Court says that old and ubiquitous technologies don't count when judging if an abstract concept has been transformed into a patentable application of said abstract concept.

(Patent lawyers are up in arms about this, complaining that the Court has "mixed up article 101 (subject matter) with articles 102 (prior art) and 103 (obviousness)". To get more patents, they want to reduce the "abstract ideas" exception to a theoretical concept that only happens inside people's brains any patent application can pass.)

So Timothy's right (as usual), but still, at least we have the Justices acknowledging that algorithms shouldn't be patentable, and that "on a computer" doesn't make a non-patentable concept patentable. All we have to do is bridge that last gap and show them that all software is math:

http://en.swpat.org/wiki/Softw...

For Alice v. CLS, more analyses listed at the end of this page:

http://en.swpat.org/wiki/Alice...

With regard to this, one helpful thing in the ruling is that the Court says that old and ubiquitous technologies don't count when judging if an abstract concept has been transformed into a patentable application of said abstract concept.

(Patent lawyers are up in arms about this, complaining that the Court has "mixed up article 101 (subject matter) with articles 102 (prior art) and 103 (obviousness)". To get more patents, they want to reduce the "abstract ideas" exception to a theoretical concept that only happens inside people's brains any patent application can pass.)

So Timothy's right (as usual), but still, at least we have the Justices acknowledging that algorithms shouldn't be patentable, and that "on a computer" doesn't make a non-patentable concept patentable. All we have to do is bridge that last gap and show them that all software is math:

http://en.swpat.org/wiki/Softw...

For Alice v. CLS, more analyses listed at the end of this page:

http://en.swpat.org/wiki/Alice...

Sorry, all you've got is me.

If anyone can help, I've been building this wiki for five years now without a break:

http://en.swpat.org/

(And I'm working on campaigns against software patents since 2003.)

This is the story of the patents involved. It's not so much that there was any litigation, but rather the ongoing threat that there would be (for arguably stuff that was already being done.)

> You can patent a new method for ranking relevant web pages in search results.

Yes, but not according to patent law. Because it's an algorithm, and thus mathematics. All software is mathematics, mathematically provable.

The whole trouble comes from judges, lawyers and patent offices having a completely different definition of "algorithm" than science has. And you as well, obviously.

See also: http://en.swpat.org/wiki/Softw...

Well no, however consider this

http://www.ffmpeg.org/legal.html

Q: Bottom line: Should I be worried about patent issues if I use FFmpeg?
A: Are you a private user working with FFmpeg for your own personal purposes? If so, there is remarkably little reason to be concerned. Are you using FFmpeg in a commercial software product? Read on to the next question...

Q: Is it perfectly alright to incorporate the whole FFmpeg core into my own commercial product?
A: You might have a problem here. There have been cases where companies have used FFmpeg in their products. These companies found out that once you start trying to make money from patented technologies, the owners of the patents will come after their licensing fees. Notably, MPEG LA is vigilant and diligent about collecting for MPEG-related technologies.

So what happens in practice is if you use FFMpeg non commercially there's no reason for them to pursue you for license fees. However if your company uses H.264 commercially and starts to make money they would.

It's sort of like if you violate a software patent in your FOSS library you will not be sued. However if someone uses that FOSS library in a device and they start to make money the patent holder may well come after you.

A good example would be Linux. Linux implements things like FAT32 long filenames which are most likely patented. You don't get sued as an individual user. However suppose TomTom make millions selling GPS devices in the US. Then there is a fair chance they helpful folks at Microsoft may sue you and demand you sign a license. At that point you can pony up the cash or counter sue them

E.g.

http://en.wikipedia.org/wiki/Microsoft_Corp._v._TomTom_Inc.

Note there actually is a lot wrong with this system. It gives old, large companies with an extensive patent portfolio an advantage over new, small ones with a smaller portfolio for example and that seems to me to be the opposite of what the law should do in the interests of competition. Many software patents are of dubious originality. Even companies like Google and Microsoft have fallen victim to dubious patents. In fact the reason they build up patent portfolios is primarily defensive - it means that if they are sued for patent violation they most likely have a patent which the company suing them is violating too.

Still the idea that people will be sued because they encode or decode videos using FFMPEG is bogus. As is the idea that putting a H.264 video on the internet will mean you need to pay a license fee. In practice only people who are making enough profit to make them a target get sued for patent infringement. Or that the Linux Foundation of people like Canonical will be sued for infringing patents. Canonical declined to discuss patents with Microsoft but they did license the MPEG LA patents. They also joined the PCI SIG. So it seems like industry standards with a patent pool are something they accept. Microsoft trying to collect royalties on their patents unilaterally they won't. There's a certain amount of sense in this position.

Incidentally once you understand how the system works you can see why FFMPEG or other open source products don't get granted 'unlimited no cost license'. Not to distribute - they can already do that for free. What they can't do is to offer a free license to their end users to decode or encode H.264. If they could do that people would just use FFMPEG in their products and not pay the license fee to the MPEG LA.

Of course another point people miss is about video is that 'not patent encumbered' is a rather dishonest phrase. With something like WebM all you can say is that they are not currently known to use any technology, rather than they ar

Most of the remaining MPEG LA patents that matter run out in Q1 2014.

That sounds great, but could you please provide a reference or two to support it?

The sources I have seen suggest that it will be after 2020 before all the patents that affect even MPEG-2 will be gone. For example: this kuro5hin article lists 2023 as the year the last MPEG-2 patent runs out. And this page lists 2027 as the year the last H.264 patents run out.

If I'm understanding you correctly, you are saying that the most essential patents are running out, so it should be possible to make a patent-free coder and decoder that would cover a usable subset of the MPEG standards?

Do you predict that a patent-free MPEG-2 decoder capable of playing DVDs would be possible within a year?

No MS will not refuse it. It will include this in the patent license needed for a android phone.

It is suspected that MS receives 10 dollar/euro (not sure) for every sold android phone, in patent licenses.

However as part of the license it is sealed exactly what is licensed. So you cannot work arround this. And nobody is usre about this. And since fighting of a pantent is a long and expensive proces, most suppliers just pay, because is has the least risk, and most economic outcome. The FAT patent is needed to read SD card (maybe...) .

Apple decided to fight android. MS decided to earn a lot of money on it.

It also doesn't help when the patent holder doesn't make anything but lawsuits.

BTW, the free software movement has a cross-licensing pool already.

> If you accept that mathematics is not patentable then you must accept that computer programs are not patentable.

Ok. But since UK and USA courts have upheld patents on math, this mantra doesn't get us as far as people think.

* http://en.swpat.org/wiki/Software_is_math#Some_judges_say_math_is_patentable

We need laws to exclude software from patentability. Like what New Zealand did last week (but with a bit of work we can write a better text).

Here's a page I'm in the process of writing:

* http://en.swpat.org/wiki/How_to_write_a_law_banning_software_patents

> If you accept that mathematics is not patentable then you must accept that computer programs are not patentable.

Ok. But since UK and USA courts have upheld patents on math, this mantra doesn't get us as far as people think.

* http://en.swpat.org/wiki/Software_is_math#Some_judges_say_math_is_patentable

We need laws to exclude software from patentability. Like what New Zealand did last week (but with a bit of work we can write a better text).

Here's a page I'm in the process of writing:

* http://en.swpat.org/wiki/How_to_write_a_law_banning_software_patents

This is really important because it's the first time that a country has explicitly banned software patents, with knowledge of what it's doing.

Other jurisdictions have legislation which says software can't be patentable, like the European Patent Convention, but because it was written before software patents became a problem there are debates about the intention of the text.

Thanks to New Zealand, we'll have an example of a developed economy banning software patents, so there will be proof that it doesn't make an economy collapse etc.

More background here:
* http://en.swpat.org/wiki/New_Zealand_Patents_Bill_235
* http://en.swpat.org/wiki/New_Zealand

This is really important because it's the first time that a country has explicitly banned software patents, with knowledge of what it's doing.

Other jurisdictions have legislation which says software can't be patentable, like the European Patent Convention, but because it was written before software patents became a problem there are debates about the intention of the text.

Thanks to New Zealand, we'll have an example of a developed economy banning software patents, so there will be proof that it doesn't make an economy collapse etc.

More background here:
* http://en.swpat.org/wiki/New_Zealand_Patents_Bill_235
* http://en.swpat.org/wiki/New_Zealand

The only writable file system for removable media that works with stock Windows XP is FAT, on the modern form of which Microsoft holds patents that won't expire until the end of 2016. These patents have been upheld in both Germany and the United States. Windows Vista adds UDF as another possibility, but the SD Card Association has instead adopted Microsoft's newly patented exFAT for 64 GB and larger cards, and people will expect to be able to eject their exFAT-formatted SDXC cards from a computer and insert them into a mobile device. The easiest way to avoid having to pay Microsoft for a FAT license is not to include a means for external storage on a device in the first place.

Impossible.

What would really happen:
Small development company sued over and over by large company who wants to prevent them from competing with ridiculously broad software patents until small company goes out of business. Large competitor has 10's of thousands of dubious patents...
Just dealing with a single assertion from large corporation costs $200,000 http://en.swpat.org/wiki/Cost_of_defending_yourself_against_patent_litigation

For software, they don't help innovation, and promoting innovation can't be the only goal. Lots of non-innovative software development is really useful.

* http://en.swpat.org/wiki/Studies_on_economics_and_innovation
* http://en.swpat.org/wiki/More_than_innovation

And it's really crucial that patents be analysed per-domain. The don't affect pharma and the auto industry the same, and they don't affect software the same either. The distribution models are different, as is the profile of who mass produces each thing, as is the complexity (number of ideas) that get added to a product within one lifecycle, and the length of product lifecycles...

* http://en.swpat.org/wiki/Why_software_is_different

For software, they don't help innovation, and promoting innovation can't be the only goal. Lots of non-innovative software development is really useful.

* http://en.swpat.org/wiki/Studies_on_economics_and_innovation
* http://en.swpat.org/wiki/More_than_innovation

And it's really crucial that patents be analysed per-domain. The don't affect pharma and the auto industry the same, and they don't affect software the same either. The distribution models are different, as is the profile of who mass produces each thing, as is the complexity (number of ideas) that get added to a product within one lifecycle, and the length of product lifecycles...

* http://en.swpat.org/wiki/Why_software_is_different

For software, they don't help innovation, and promoting innovation can't be the only goal. Lots of non-innovative software development is really useful.

* http://en.swpat.org/wiki/Studies_on_economics_and_innovation
* http://en.swpat.org/wiki/More_than_innovation

And it's really crucial that patents be analysed per-domain. The don't affect pharma and the auto industry the same, and they don't affect software the same either. The distribution models are different, as is the profile of who mass produces each thing, as is the complexity (number of ideas) that get added to a product within one lifecycle, and the length of product lifecycles...

* http://en.swpat.org/wiki/Why_software_is_different

I've been documenting this and have all the background here:

http://en.swpat.org/wiki/German_parliament_petition_against_software_patents

Which lawsuits did Microsoft ever win?

Microsoft v. TomTom was taken to U.S. court and the International Trade Commission but was settled. A separate case in Germany resulted in a win for Microsoft at the German Supreme Court.

Someone will probably reply with a link to a story about someone patenting the wheel in Australia. But it's not true.

Or, it wasn't a "patent". It was an "innovation patent", which is something completely different and doesn't get any substantial examination by any examiner. They just check the formalities and rubber stamp it (and the examination happens if, and only if, there is litigation, which never happened with the wheel innovation patent).

But there are many silly patents in the world:

http://en.swpat.org/wiki/Silly_patents

The USPTO is holding roundtables with software developers to ask for suggestions. If anyone can add to what's there already, I've some suggestions on this wiki:

http://en.swpat.org/wiki/Suggestions_for_the_USPTO_in_2013

(But remember, the patent office has only a small role in patent policy. Most substantial changes will have to come from Congress or the Supreme Court.)

> Jpeg and mpeg

Nonsense. Patents might have funded R&D in one building, but those patents blocked R&D in every other building.

In the 90s, everyone was after image and video compression, there were piles of people working on it, or wanting to work on it. Studies show that software patents caused money to be diverted *away* from R&D (toward patent defence, defensive acquisition etc.).

http://en.swpat.org/wiki/Studies_on_economics_and_innovation
http://en.swpat.org/wiki/An_Empirical_Look_at_Software_Patents

And if you want to fund researchers, just abolish software patents and suddenly you free up a few billion in application fees, maintenance fees, freedom to operate search fees, defence costs, out of court settlements, licensing fees...

> Jpeg and mpeg

Nonsense. Patents might have funded R&D in one building, but those patents blocked R&D in every other building.

In the 90s, everyone was after image and video compression, there were piles of people working on it, or wanting to work on it. Studies show that software patents caused money to be diverted *away* from R&D (toward patent defence, defensive acquisition etc.).

http://en.swpat.org/wiki/Studies_on_economics_and_innovation
http://en.swpat.org/wiki/An_Empirical_Look_at_Software_Patents

And if you want to fund researchers, just abolish software patents and suddenly you free up a few billion in application fees, maintenance fees, freedom to operate search fees, defence costs, out of court settlements, licensing fees...

He also wrote a good piece back in July:

http://www.theatlantic.com/business/archive/2012/07/why-there-are-too-many-patents-in-america/259725/ ...where he repeats most of the arguments that people use to ask for abolishing software patents, but he stops short and instead muses on a few reforms (that probably wouldn't have much of an effect).

Here's my views on his July piece:

http://news.swpat.org/2012/07/posners-problem/

And there're a few more links about his positions here:

http://en.swpat.org/wiki/Richard_Posner_on_software_patents

Abolition seems like the logical conclusion of his musings. I can't see why he doesn't discuss it.

He also wrote a good piece back in July:

http://www.theatlantic.com/business/archive/2012/07/why-there-are-too-many-patents-in-america/259725/ ...where he repeats most of the arguments that people use to ask for abolishing software patents, but he stops short and instead muses on a few reforms (that probably wouldn't have much of an effect).

Here's my views on his July piece:

http://news.swpat.org/2012/07/posners-problem/

And there're a few more links about his positions here:

http://en.swpat.org/wiki/Richard_Posner_on_software_patents

Abolition seems like the logical conclusion of his musings. I can't see why he doesn't discuss it.

MPEG LA claims to manage 346 patents (in the USA alone) which are necessary for anyone who wants to write a video player that can play this very widely used format.

Eliminating 5%, or even 95% of these patents will change nothing. Software developers will still have to ask MPEG LA for permission, and MPEG LA will continue to prohibit free software implementations.

Why bother with these complicated, time-consuming ideas? The way to fix the problem (and unblock the patent office), is to make software simply non-eligible.

* http://en.swpat.org/wiki/MPEG_LA

* http://en.swpat.org/wiki/Raising_examination_standards_wouldn't_fix_much

MPEG LA claims to manage 346 patents (in the USA alone) which are necessary for anyone who wants to write a video player that can play this very widely used format.

Eliminating 5%, or even 95% of these patents will change nothing. Software developers will still have to ask MPEG LA for permission, and MPEG LA will continue to prohibit free software implementations.

Why bother with these complicated, time-consuming ideas? The way to fix the problem (and unblock the patent office), is to make software simply non-eligible.

* http://en.swpat.org/wiki/MPEG_LA

* http://en.swpat.org/wiki/Raising_examination_standards_wouldn't_fix_much

Google is doing all of the following:
1) Lobbying against the existing software patent regime,
2) Working very hard (e.g., via amicus filings in cases to which it is not a party) to get the U.S. Court of Appeals for the Federal Circuit to stop blatantly ignoring Supreme Court decisions (particularly, Bilski) limiting patentability under the existing patent laws, so that patents that are invalid -- under the standards set by the Supreme Court interpreting existing law -- don't keep getting upheld by the Federal Circuit, and
3) ...

Items 1 and 2 are very good news. You mention Bilski, which is a good reference (here's a link for others who are interested). Do you have any other citations of Google's efforts? I want to believe.

Obviously the patent squabbles in these cases are ridiculous - the only reason we have functioning high-tech industry in the US is that most companies are not like Apple, and do not use patents offernsively.

It's a good time to review the reasons why, for example, software patents do not work, and can never be made to work:

http://en.swpat.org/wiki/Why_abolish_software_patents

Software patents clearly do more harm than good. An additional area of bad patent law I learned about as a result of this case are for visual design. I'd like to how any rational person could defend the idea that being able to prevent competitors from making similar-looking things promotes innovation unless they're being paid to do so. Any appropriate protection of design can be accomplished by copyrights and trademarks, though those are often abused as well.

Obviously the patent squabbles in these cases are ridiculous - the only reason we have functioning high-tech industry in the US is that most companies are not like Apple, and do not use patents offernsively.

It's a good time to review the reasons why, for example, software patents do not work, and can never be made to work:

http://en.swpat.org/wiki/Why_abolish_software_patents

Actually, offensive use of patents has been the norm for over two centuries. Its a trend that you hear about now because its new in software technology, and you're clearly either in technology or interested in software technology.

The *only* unique thing about patents relative to software is that the industry got as big as it did before patent trolling and offensive litigation became so common. It was the norm in virtually every vertical space involved with the industrial revolution going back to the founding of the US, and was typically immediate to the arising of a new vertical.

Obviously the patent squabbles in these cases are ridiculous - the only reason we have functioning high-tech industry in the US is that most companies are not like Apple, and do not use patents offernsively.

It's a good time to review the reasons why, for example, software patents do not work, and can never be made to work:

http://en.swpat.org/wiki/Why_abolish_software_patents

So go ahead a join the Open Invention Network.

Put your money where your mouth is.

http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm

Intellectual property: Patents against prosperity | The Economist

Why abolish software patents - software patents wiki (en.swpat.org)

When Patents Attack! | This American Life

Johanna Blakley: Lessons from fashion's free culture | Video on TED.com

Do music artists fare better in a world with illegal file-sharing? Times Labs Blog

The Coming War on General Purpose Computation - Boing Boing

US patent trolling costs $29b: study - Strategy - Business - News - iTnews.com.au

Patents | Electronic Frontier Foundation

http://christianengstrom.wordpress.com/

Zynga might be too close, but the vast majority of games actually copy each other so much that they create a GENDRE for god's sake. And that has been alwways a good thing for gaming in particular. The truth is that yes, there are indeed assholes, there will always be, but they seem to be on both sides and the question remains to where do they cause the less damage.

As far as being non-creative, I'm not sure who you mean. Personally, I develop new software for a living and I was curiously enough working on my novel when I got your reply.

I don't often respond to AC's, but when I do, I prefer to usurp AC's point.

Fashion... that's a good idea. I like that.

No, really... it makes more sense than other allegories. Think about it, people buy clothes; some for function, some for style. People buy software; some for sheer functionality (Linux packages, some PC offerings) and others for more stylish flair. (most Mac software, also some PC offerings but Adobe comes to mind the most)

Every new season, it seems there's a new fashion. Designers and textile plants keep striving to stay on the cutting edge. Every so often, it seems that some software bundle is being upgraded. However, developers aren't always striving to stay ahead, but only to be different enough to keep from being sued. Starting to see the similarities now?

And by the by... clothing may not be patented, but zippers are... so are snaps... even cuff-links. Still, point taken. These patents do nothing to protect the design of clothes that feature them nor prevent others from innovating their own fasteners, they simply prevent others from manufacturing the exact-same fastener mechanism.

So, why would the software business model suffer if there were no patents? Frankly, I don't think it would because it--and every user bound by their efforts--suffers for it now. It would remove this bass-ackward economy of patent litigation and infringement maneuvering, a sub-economy that should (IMHO) be outlawed by the UN. Competition without the fear of patent mongers would foster innovation at a faster pace and drive the larger firms to keep up with the smaller, agile indie developers. They pound their files in an earnest display of defending their innovation, when the line between true innovation and simple tropes or conventions becomes increasingly thinner. In fashion, you can tell when it's a knock-off... so guess what? We can tell when an app is a knock-off of a more popular app, too! Ultimately, it comes down to the label; whether it's sewed into the hem or printed on the CD.

So, it begs the question of why this patent system still exists? It's easy, really. The largest developers and the largest stakeholders in tech are so afraid of having to rapidly react to competitors that they move their legal teams instead. They know a dedicated partnership or legal firm is going to move much faster than it would take to compete with actual innovation. They can fire off a C&D faster than a gold CD.

We hear this rallying cry from the behemoths, "too big to fail," when it should be, "too ponderously slow to compete." (Hello, Mr. Ballmer)

IANAL, but let the litigation fall back to where it belongs; contract law. Every EULA has a clause about reverse-engineering or hacking the software. If there's an infringement, then let it be covered by that clause. Let the so-called "patents" (e.g., a 'right-click' or context menu, a vertical scrollbar without calling it a 'vertical scrollbar', et al) be diminished to a more-fitting role; as fashions past.

The burden of proof with software should be a simple test: Is it ripping-off an original? True, that would have to be coined in legal terms that must take about five pages to be fully

You're confusing two different things here. When a patent claims "[super novel and non-obvious technique] performed by a computer," it's not saying that the computer is the point of novelty... and there's also nothing that requires every element of a claim to be independently novel and nonobvious.

The straw-man arguments are getting a bit ridiculous here, not to mention repetitive. I never said that every element had to be both novel and non-obvious, just that some element had to be. If the patent consists of one thing (the algorithm) which is non-obvious but not novel—a law of nature—plus something else which is novel ("on a computer") but obvious, then the patent shouldn't be granted.

Additionally, you're also confusing two different statutes. 35 USC 102 and 103 are the ones that say patents have to be novel and nonobvious. 35 USC 101 - what we're talking about - is the one that says that even a novel, nonobvious idea is unpatentable if it's not directed to patent-eligible subject matter.

I'm not confusing the issues, I'm saying that software patents should be rejected for both reasons. Subject matter aside, they add nothing to the state of the art which is both novel and non-obvious. From a subject matter P.O.V., irrelevancies relating to run on a computer vs. run in your head aside, algorithms are math, and math is not a patentable subject matter.

The pro-software patent camp is the group confusing the issue, by trying to claim that the subject matter restriction doesn't apply simply because you use a computer to assist you with the math.

Because it's tied to a computer, it's patent-eligible. The pencil and paper version is not patent-eligible, even if it's the most novel and non-obvious algorithm ever invented.

We already know that this is your position. The question is: Why? What's so different about using a computer for assistance, rather than pencil and paper?

... look at the areas where interoperability has suffered due to Microsoft's FAT filesystem patents, or patents on media codecs, or lossless compression algorithms, or rendering techniques.

[sarcasm]It's true. My FAT-formatted USB stick won't run at all on my Mac. And I still have to view everything in vector graphics since rendering techniques are patented.[/sarcasm]

Sorry, do you have any concrete examples of this?

LMGTFY: Harm to standards and compatibility, Free software projects harmed by software patents

As I already pointed out, patents don't need to completely block something in order to be stifling innovation or otherwise causing harm, they just need to be making it more costly than it otherwise would be.

On the contrary, the greater variety of wheels we have - wheels that will enter the public domain in a relatively short time - greatly increases the rate of progress.

Nonsense. We don't benefit from people driving around with hexagonal wheels for the sole reason that someone holds a patent on the round version. If there is a variation which is actually better, it will be invented and used for that reason and not just because someone holds a patent on an inferior version. Otherwise, we're better off without the workarounds. To add insult to injury, at the pace of the technology industry that "relatively short time" is generally much longer than it takes for the subject of the patent to become obsolete.

Software patents are also inherently incompatible with free and open-source software; any license fee whatsoever will block legal free software development in that area.

I fail to see how that's an argument for or against them - they're incompatible with the idea

You're confusing two different things here. When a patent claims "[super novel and non-obvious technique] performed by a computer," it's not saying that the computer is the point of novelty... and there's also nothing that requires every element of a claim to be independently novel and nonobvious.

The straw-man arguments are getting a bit ridiculous here, not to mention repetitive. I never said that every element had to be both novel and non-obvious, just that some element had to be. If the patent consists of one thing (the algorithm) which is non-obvious but not novel—a law of nature—plus something else which is novel ("on a computer") but obvious, then the patent shouldn't be granted.

Additionally, you're also confusing two different statutes. 35 USC 102 and 103 are the ones that say patents have to be novel and nonobvious. 35 USC 101 - what we're talking about - is the one that says that even a novel, nonobvious idea is unpatentable if it's not directed to patent-eligible subject matter.

I'm not confusing the issues, I'm saying that software patents should be rejected for both reasons. Subject matter aside, they add nothing to the state of the art which is both novel and non-obvious. From a subject matter P.O.V., irrelevancies relating to run on a computer vs. run in your head aside, algorithms are math, and math is not a patentable subject matter.

The pro-software patent camp is the group confusing the issue, by trying to claim that the subject matter restriction doesn't apply simply because you use a computer to assist you with the math.

Because it's tied to a computer, it's patent-eligible. The pencil and paper version is not patent-eligible, even if it's the most novel and non-obvious algorithm ever invented.

We already know that this is your position. The question is: Why? What's so different about using a computer for assistance, rather than pencil and paper?

... look at the areas where interoperability has suffered due to Microsoft's FAT filesystem patents, or patents on media codecs, or lossless compression algorithms, or rendering techniques.

[sarcasm]It's true. My FAT-formatted USB stick won't run at all on my Mac. And I still have to view everything in vector graphics since rendering techniques are patented.[/sarcasm]

Sorry, do you have any concrete examples of this?

LMGTFY: Harm to standards and compatibility, Free software projects harmed by software patents

As I already pointed out, patents don't need to completely block something in order to be stifling innovation or otherwise causing harm, they just need to be making it more costly than it otherwise would be.

On the contrary, the greater variety of wheels we have - wheels that will enter the public domain in a relatively short time - greatly increases the rate of progress.

Nonsense. We don't benefit from people driving around with hexagonal wheels for the sole reason that someone holds a patent on the round version. If there is a variation which is actually better, it will be invented and used for that reason and not just because someone holds a patent on an inferior version. Otherwise, we're better off without the workarounds. To add insult to injury, at the pace of the technology industry that "relatively short time" is generally much longer than it takes for the subject of the patent to become obsolete.

Software patents are also inherently incompatible with free and open-source software; any license fee whatsoever will block legal free software development in that area.

I fail to see how that's an argument for or against them - they're incompatible with the idea

It's actually worse with patents. Reading patents before going on to allegedly violate them will make it wilful infringement and subject you to triple damages.

http://en.swpat.org/wiki/Wilful_infringement

What the GP meant is not that the distinction should be "is the abstract process carried out using electrons or chemical reactions". What he (presumably) meant, was "does the novelty lie in the abstract process, or does it lie in the physical process". Figuring out an energy-efficient way to split water into oxygen and hydrogen obviously can be represented via abstract formulas, the but the novelty does not lie in the maths but in the physical insight.

Conversely, an algorithm that performs a quicker FFT is an innovation in mathematics rather than in physics, even if when calculating that formula using a CPU uses less electricity. I.e., the fact that any kind of mathematics can be calculated using physical means (including our brains), should not suddenly render it patentable. The innovation is not a new understanding about how electrons work. And no, generally implementing that same innovation in hardware would/should/is not be patentable either (the innovation is not in how to build hardware). That why they came up with the integrated circuit layout design protection (although it's not very popular due to it being way narrower than a patent, and of course it's always more fun/interesting to have broad exclusion rights instead of narrow ones).

In general, this kind of philosophical discussion does not lead anywhere though. The easiest way to demonstrate why software patents don't work is to simply look at the negative effects of how they work in practice.

Really? Because I see a whole bunch of new phones at CES. Do you have any evidence that innovation is being held back, or is this just a gut "but it must be so" feeling?

Given that "innovation" is defined as delivering new inventions to end customers, this becomes, in a sense a stupid question. Blocking innovation is exactly what patents are designed to do. The Magsafe connector is a really neat idea. By now, if it were possible, at least one PC manufacturer would have an equivalent. The reason they don't is because Apple has a patent and they can use that patent to block innovation. This extends simply to include all of the Apple lawsuits against Samsung which held back innovation in the new phones from being delivered to Samsung's customers. In other words;

patents just do block innovation; that's their job; if your patent attorney isn't blocking your competitors innovation, fire him.

Where does the idea that patents "further the arts" etc. come from then? Well, one aim of patents is that inventors should record their innovations so that the ideas wouldn't be lost when they die. Also the idea is that whilst patents block innovation in one area, they further it in other related areas by forcing competitors to come up with different inventions which achieve the same thing in a different way. Thus patent supporters would predict for example:

• There should be many magsafe competitors on the market using, e.g. mechanical connectors like old Nokia headphones or other methods of attachment - there aren't
• The magsafe patent should tell you things about making a magsafe connector which you could never work out by just looking at one - it doesn't
• It should reasonably easy to work around the magsafe patent by finding another different device which does the same thing - nobody has done this yet

That in its self is "evidence", but you might claim it's just a one off. It's definitely true that a number of innovations that nobody would hear of otherwise end up recorded in patents, for example very obscure and different kinds of mousetraps are continually invented even though it's not clear that actually drives innovation.

The patent apologist would answer that by claiming that "yes, in situation a, b and c the patent got in the way of innovation, but overall, taking into account all the different patents, the situation is better than it would be otherwise". It's almost impossible to answer that. Almost but not quite impossible.

Firstly we can compare places with weaker patents with those with stronger patents; we would expect to see innovation in the USA accellerating, due to it's broad patent protection, whilst China should be losing ground since patents are regularly ignored there. In fact we see the opposite.

Now, I'd like to separate out "software patents" from patents in general. I believe that if the system was reverted back to more narrow patents and lifetimes were more limited, patents on physical devices would be justified. Physical devices develop more slowly; have higher duplication costs against which patent costs are more easily justified and tend to have a much lower number of patents per device. Software patents are another issue.

As a second part of our statistical evidence there have been a bunch of different academic studies. AN EMPIRICAL LOOK AT SOFTWARE PATENTS from Besson et al does a good examination of the effect of software patents. The conclusion is fairly clearly that software patents damage innovation. Another example of this academic research A GENERATION OF SOFTWARE PATENTS ends it's abst