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Making the Case Against Software Patents?
heretic108 asks: "I'm an open-source developer in a small western nation, which is slowly starting to take interest in Open Source, but whose (still MS-dominated) government is currently considering adopting a software patents regime similar to USA. This nation boasts a smart and feisty IT community, who have been terribly under-represented in government. I have a meeting in a week with a prominent member of the legislature (who has IT portfolio interests), during which I will have the opportunity to put the case against software patents. I'm asking for help in assembling information for use in the anti-patents case. Thank you dearly for any and all help you are able to provide here."
(Also, if anyone can find the source of the quote attributed to Bill Gates arguing that the modern patents regime, if it existed decades ago, would have slowed the industry to a standstill).
Also very desirable will be testimonials from senior staff of small to medium R&D and body-shop houses, truthfully showing the negative effects patents have had on their ability to compete.
And, very importantly, any brief testimonials from indepenedant developers who have not intentionally stolen intellectual property, but have actually been squashed under patent laws."
"I'm looking for references that cover the following subjects:
- Triviality of some patents
- Patents as anti-competitive instrument
- Patents' discriminatory nature - difficulty faced by smaller developers with patent enforcement
- Costs of patent searches, and their impact on the creative flow of software development
- Clear evidence that a software patents regime is squeezing small and independent players out of the industry and creating an oligopoly for the largest players
- Clear evidence that under the software patents regime, the entire 'space' or public commons of programming concepts is being subsumed into private ownership
- Clear evidence and examples of patent law being abused and having a net anti-innovation effect
- Anything else you have bookmarked, or can google upon, which can help build the most solid case.
(Also, if anyone can find the source of the quote attributed to Bill Gates arguing that the modern patents regime, if it existed decades ago, would have slowed the industry to a standstill).
Also very desirable will be testimonials from senior staff of small to medium R&D and body-shop houses, truthfully showing the negative effects patents have had on their ability to compete.
And, very importantly, any brief testimonials from indepenedant developers who have not intentionally stolen intellectual property, but have actually been squashed under patent laws."
"If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today." -- Bill Gates, Microsoft, 1991
KWTCMA
Before you dive into google and read the thousands of pages listed on this subject, try to think up some arguments for yourself.
Once you've formulated some arguments, then use google/google groups to look for confirmation - writings of other people who have formulated the same argument.
This will give you confidence when making your case because you will really understand what you are saying.
If you just recite somebody else's argument without understanding the proof you won't come across as very convincing.
Proprietary code should be protected by a copyright, not a patent.
You can copyright a work that is a product of intellectual endevour, but you can't patent the words used in writing it, nor can you patent sentence structure and the language used, or the media used to store and distribute. And that is what software patents try to do, restrict the very language use and tools we use to contruct our bodies of work. It is so easy to accidentally discover a method used to solve a problem strickly in a clean room setting that could infringe on some patent.
Copyright is the way to protect software, not patents.
Patents as anti-competitive instrument
The whole idea of patents, AFAIK, is to grant a temporary monopoly for the patent holder, and thereby giving them a greater chance at a return for their invested R&D. This isn't a flaw of the system at all. Now how certain patents (software, etc.) are approved is another story.
The concept of a Patent was never intended to relate to computer software ; a Copyright is a much more accurate and viable protection option for individual companies rights.
With Software Patent, you are protecting an actual system of execution or problem solving. The problem is that the essential knowledge any computer programmer has is not protected (and could not be), and with software in particular there is no *system* that is not a very simple extention of commonly understood concepts. In short, computing overall is simple when you analyze software modularly.
Take for example the attempts to patent, 'click-throughs' or 'downloading software after authenticating'. Attempts have actually been made to patent these concepts, and they are not *bad* examples - in both cases the wording of the patent request was executed in such a way as to gain control over something that was seemingly legitimate because it was a simple extension of 'click-through' or 'downloading'. In both cases the patent *would have* given control over these actual acts. This is not simple wording, it is the nature of software.
My own company develops software, we have a representative for patent and copyright, and we are more than happy to utilize his services as a Copyright agent to protect our rights. We copyright the documents that explain our business, our systems, and which we feel portray us best. Over all the end result is protected business, not a protected product. It is in the representation of a product and a business that competitors gain their foothold ; that should be the real focus here.
Ace
Ya know, if you want to change laws, signing petitions addressed to "The United States Government" is not the way to do it. The US is a representative democracy. Write letters to your congress people, talk to them about your issues, and, for crying out loud, primary elections are Tues. Sept. 10. Vote, people, VOTE!
I think the easiest example why patents are bad is the recent JPEG patent: JPEG is, without any doubt, the most widespread compression format for images. Every expert should know it. But just last month, after over 10 years of existence, some company came up with a patent that has valid claims against JPEG. How can any company build a product without violating somebody else's patent when nobody noticed JPEG's patent violation for 10 years, not even the 'inventor' of the patent?
The main problem is that the concept of patent seems to assume that it is impossible that two people have the same idea. If somebody uses a patented technique, he must have 'stolen' it. But that's not the way it is in reality, because people 'reinvent' things without knowing the existing patents all the time. Often you just need to think about a problem set and get the same, patented idea. And this is exactly the thing that should be changed of a patent: when you use something that is patented, and you have never seen the patent's content before, you should not have to pay royalties or damages unless the patent holder can prove that you 'copied' his invention and not reinvented it yourself.
Also, make certain that you point out that the ability to patent file formats (.dwg, .mp3, etc) creates a situation that can encourage a monopoly and stifle growth (Autodesk, Fraunhaufer). Think how much better Autocad would be if they had to compete to keep their customers based on quality instead of compatibility with their current files...
Murphy was an optimist.
This nation boasts a smart and feisty IT community, who have been terribly under-represented in government.
Smart people are generally underrepresented in every government. Tough luck...
I would like to die like my grandfather did - sleeping. And not screaming in terror, like his passengers.
You're confusing the means with the end, which is the sort of thinking that got us into this mess.
If a thing is not diminished by being shared, it is not rightly owned if it is only owned & not shared. S. Augustine
Well, What you need is imho a good argument. US politics view large businesses as the driving force of innovation. Patents became the way to protect industries who invested large ammounts of money into R&D. (Apart from the principal argument that the inventor should own an invention).
Microsoft and others will use this argument. They will say that making software is time-consuming (=very costly) and that their product should be protected.
The R&D-argument is very true when it comes to medicine, chemistry, electronics, microchips etc. Question is if this investment argument is true for software.
Software is a different story. It's costly to make (If you use the microsoft way). However there is hardly any 'invention' coming from redmond. It's the copy problem that is bothering microsoft. Well question is, if this is a goverment problem.
(Goverment-software issue)
Would a goverment have to use expensive software because a software-producer has a problem?
(Patents issue)
Would a goverment have to obstruct open-source development because a software producer has a problem?
(Patent issue)
Is the Patent meant for helping a software producer out?
2 Statements:
1.
Making illegal copy's of software is wrong and a company should have legal means of preventing it. Goverment should facilitate this with legislation and a good legal system. Solving it is not a goverment task. Patents may not be the right way to facilitate microsoft (and others).
2.
Innovation can't wait for microsoft. Innovation does not need microsoft. The software world is better off when people are free to use an idea.
That last point is important. In US patents it is possible to get a patent on a Idea, a concept. Scientists, inventors or other creative people should not be confronted with ownership of ideas. That creates blockades where we do not want them. Most european legislation only allows more 'real' stuff to be patented. CD's with Win2k on it for instance. That needs protection. Not the idea of it. The idea must be expandable.
Take the html case. Every money maker dreams of owning html. I hope this never happens. The freedom of it allowed it to grow beyond version 1.0.
I hope it helps you.
Greetings,
Daïm
# Costs of patent searches, and their impact on the creative flow of software development
Paradoxically, the result of the patent system is to amplify the NIH ("not invented here") syndrome that is the bane of innovation. At the startup that I have been associated with, the explicit policy was that researchers and developers were NOT to go searching in the literature, and especially not in the patent literature.
The reason was very simple: if we found a good idea from somewhere else, it might make our product a better one. But there was a good chance that it would be patented and that we would now be "willfully infringing" on the process and get hammered in court. (We fully expected to get sued at some point.) Moreover, being aware of the prior art would get in the way of our making outlandishly broad claims in our own patent filings. (After all, the inventors must sign an Oath declaring that they believe all the claims are truly innovative. Apparently, willful negligence in doing literature searches has no legal penalties!)
By closing our eyes, the goal was to enable us to pull the wool over the eyes of investors and potential customers. We could swear that there were no violations that we knew of and also present patent applications for them to view (under draconian NDAs of course! otherwise they might just show them to someone who could expose the game. The real point of NDAs is to isolate the person who signs them and make them dependent on you. Sort of like the pimp who demands his ho's cut off family ties...)
The point of all this is that the real cost of the current totally screwed up patent system is that searches are NOT done and innovation is slowed down in the process of everyone reinventing the wheel.
The lonely inventor in his garage could design and hand-mill a sample of his machine, but could never mass-produce one. The patent allowed him to get some money by selling the rights to manufacture it to a company that could.... Unfortunately for software (and also for business ideas) the costs are exactly reversed. Anybody capable of inventing something already has spent 100% of the manufacturing costs and already possesses the machinery necessary to produce the invention (ie a computer). The patent does not protect the small guy.
In the software scenario described, I agree that the inventor/programmer may not need the large company to provide manufacturing resources. In other words, it is possible that the inventor/programmer can "get some money" by selling the software product directly to consumers.
But how does the conclusion, "The patent does not protect the small guy," follow from this scenario? A patent would provide the inventor/programmer an exclusive right to his invention, and if he is motivated to "get some money," as the scenario assumes, this may provide the protection necessary to market the software product.
I expect if you check you will find that there are absolutly NO examples of any single inventors owning a patent on software or business methods.
I missed the point related to who actually owns a software patent. In the first example described, the "lonely" inventor/machinist sold his patent to a large manufacturing company; he doesn't own the patent.
Instead patents can be used now by large companies as the only method they have to prevent the little guy from starting up. This was true before but completely dwarfed by the need for expensive manufacturing facilities, so before patents did not screw up the market.
As noted ("This was true before..."), patents have always allowed companies (large or small) and individual patentholders to prevent someone else from making or using a claimed invention. But what does "the need for expensive manufacturing facilities" have to do with respect to the patentability of inventions in software?
My best guess at a restatement of the argument is: In olden days, large companies could have prevented the small guy inventor/machinist from entering the market with a competing (presumably infringing product) by asserting patents, but did not need to because the small guy could not afford to manufacture any competing products anyway. So the patents of large companies were only relevant in competition with other large companies.
Unfortunately, that argument just says that hardware patents are good because small inventors can get them (although they have to sell them to large companies?), but software patents are bad because large companies can get them. Can't small inventors get patents for software inventions, too? In fact, the author makes the point that small inventors do not need to sell software inventions to large companies--that sounds empowering for small (profit-minded) inventors/programmers vs. large companies.
There is also the problem that due to the average public's poor understanding of software, the equivalents of nuts and bolts are being patentened.
Of course, the "average public" does not actually allow patents. I take this statement to be a criticism of: (i) the expertise of the Examiners charged with examining inventions in software, (ii) the ability of the USPTO to search for prior art references relevant to inventions in software, and/or (iii) the presumption that something is patentable unless the USPTO can prove it isn't. Of these, (i) and (ii) are valid concerns, but may not be any more worrisome with respect to inventions in software and/or business practices than in any other technologies that the USPTO is just beginning to deal with, and (iii) is not unique to software.
Or a certain thread spacing on bolts is being patented after it has been adapted by virtually every manufacturer, forcing the inventor who cannot afford to license the patent to mill their own bolts and make a machine that nobody can fix because standard bolts don't fit.
This analogy to a hypothetical hardware invention clearly indicates that this is one of the costs of a patent system generally, irrespective of the subject matter of a given patent; it is not unique to patents on software inventions.
Today it is impossible to write any piece of software without violating patents.
I think the underlying criticism here is valid but not unique to software; it may be leveled at the patent system as a whole. In a worthwhile patent system the potential for chilling R&D (in any field) must be offset by benefits provided to the public by the patent system.
There is absolutely no reason for patents in this area, their only purpose is to deprive the small inventors patents are designed to protect, and move power to those able to afford the patents.
Yes, I think the issue of how much it costs a small inventor to be issued a patent (and to pay maintenance fees on once issued, and to enforce if infringed) is valid and must be addressed, but I don't understand the case being made for how that problem is unique to software. There is nothing in the above statement that is not also true in the first small guy inventor/machinist vs. large company example, except that that example assumed the "lonely inventor" could afford the machine patent.
It was not out of convenience that early patents required a model - a physical representation - of the innovation requesting a monopoly. There is a reason, and it speaks directly to why software patents are such a bad idea. Patents are meant to be advances into the undiscovered world (progress in Nature), not advances in organizing the already extant human endeavor (progress among men). Requiring a working model does this. Just because economics is unprepared to understand this is no reason to abandon the fundamental principles of a system that had worked very well. nor is bureaucratic sloth.(bureaucrat implies management, not worker)
Progress is more than rearranging the deck chairs of the Titanic - unless you are a malthusian, keynsian or Patent Inspector. Progress is the discovery of a skill beyond all current knowledge and any rearranging one might make of it. it is not an easy thing - that is why you get a patent. you don't get a patent just for moving shit around. you get a copyrite.
This is a giant blind spot in most all current economic thinking that fails here as badly as it did in the Microsoft anti-trust efforts. You have reached the edge of your tools - jump
ok - requiring a functional model eliminates "semiotic" patent requests and demonstrates the previously impossible function.
ok - one last time - if it can be deconstructed by a french philosopher, NO PATENT.
sc
Just look at the ratio of bad patents to good patents. ("Good" meaning encouraging real innovation and rewarding fairly for it.)
I suspect the breakdown would look something like this (rough-ass guess only):
Good Patents: 0.2 percent
Bad Patents: 20 percent
Patents that were never used: 79.8 percent.
Table-ized A.I.
To have trivial patents incurs a trivial patent gathering arms race where large technology firms waste resources protecting themselves from one another by accumulating trivial patents. For a government to prohibit trivial patents expends resources in arguing what patents are and are not trivial. Small firms can't amass much of an armory of trivial patents, so the innovation that comes from small firms is curtailed since a small firm's only defense is to avoid innovating in areas where they might be defenseless to an infringement claim. With software patents, your society pays, and the lawyers benefit.
You might want to look at the science angle. Computer algorithms aren't really different from mathematical algorithms. Can you imagine a mathematician patenting his method for finding large primes? Patenting software algorithms is exactly equivilent. Wouldn't it be terrible if Dijkstra had patented the semaphore? Computer science would have come to an end! Computer science is a science like any other. New discoveries should be credited to the people that discovered them, but that shouldn't prevent other people from using and building upon that work. It just stagnates the whole system.
A deep unwavering belief is a sure sign you're missing something...
Heck, I could cite one PhD thesis in comp sci that is based on an essentially obvious idea, and several such peer-reviewed papers, straight off the bat, and I'm sure I could find others. That doesn't necessarily mean they're not valid research - they may be very valid and important - but they're just exploring the consequences, advantages and disadvantages of pretty obvious incremental advances. (I wouldn't want to offend the people by naming them, but I'm quite serious.)
I'd even go on the record as saying my (as yet unpublished) ideas on OODB schema evolution are all fairly obvious - although not to quite the same extent, as no-one else appears to have thought of them in the last ten years.
Female Prison Rape in NY
At the risk of getting modded -1 flame for taking a politically incorrect position in a slashdot post, I feel compelled to point out that there is nothing wrong with software patents.
Wrong. There is something inherently wrong with software patents. Even in the US there has long been a recognised exemption for patents in mathematics. Software is mathematics. The good reasons for the mathematical exemptions are good reasons for software exemptions.
Without intellectual property protection, how is the small guy to protect himself from the bigger companies with better market presence who can just copy the product wholesale, put their name on it, and sell it?
The action you have just described is called fraud and it is a crime, the civil recourse is normal damages. One does not need another wrong to be created when one already exists for the purpose. If M$ copied the code, acknowledged the author, and sent out the package then I'm all for it, (all derogatory comments about M$ aside) if you got your name on every copy of M$ Blah, it would make you famous. In a world where your repute is your income (which is the world that we would be in without patents, even with them to some extent) then being able to say on you resume, "oh yeah, just do an 'about' on M$ Blah, yep, thats me," is money in the bank. Even before considering the value of knowing the "intimacies" of the algorithm. So the critical factor is that the developers of software must be full in their disclosure, or be compelled to be full when enquired (ie i can see that genuine omissions might be troublesome).
"The first thing to do when you find yourself in a hole is stop digging."