Perens on Patents

Prior Art by hipster_doofus · 2004-01-23 05:23 · Score: 5, Insightful

I think the biggest problem with some of the patents we're seeing these days is that the issue of prior art isn't being taken into account. There are not many things that are totally new in the software industry - just things that are improvements upon something that someone else has already done. We see a lot of patents where companies try to patent the entire idea, when they are responsible only for a certain improvement upon the original idea.

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Re:Prior Art by Mozz+Alimoz · 2004-01-23 06:05 · Score: 4, Insightful

Its not the inability of the patent examiners to look for prior art. Just using Google and NEC CitetSeer would help them. It's that they aren't even enouraged to look. It's in the Patent Office interest to grant patents - the more patents they grant the more revenue they get.
There are many more problems too. A good article on the problems with patents, the unworkable solutions and possible solutions can be found in Jeffrey D. Ullman's article Ordinary Skill in the Art
Re:Prior Art by HiThere · 2004-01-23 06:18 · Score: 3, Insightful

No. They aren't creating an asset. They're walling off a piece of the commons.

The argument for patents was, essentially, "Well, nobody's using that spot right now anyway, so I'll just wall it off and develop it". This works fine when you have an unlimited space, but we DON'T. And there are currently a lot more people developing than there used to be. So now it's destructive to the social welfare.

Now this isn't an exact analogy. The reality behind this isn't physical property, it's information, and thus several different people can successfully develop it at the same time as long as nobody is allowed to keep everyone else out.

This isn't property. Calling is so is a gross misuse of the language. I might go so far as to say that claiming that information was property is a vile form of black magic. As in deals with the devil. (Again, don't take this literally. I just mean that this is another way of saying the same thing in metaphor...and that it's always been a metaphor, whether people knew it or not.)

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Re:Prior Art by arkanes · 2004-01-23 17:14 · Score: 3, Insightful

The "garage inventory" thing is a load of hooey - the deck is stacked against the garage inventory from the start. Pretty much the only way the "little guy" makes money off of patents is by submarining them, not because someone ripped you off. The fact that Joe Inventor can't run off 100 million units is precisely why he doesn't benefit that much from patent protection - he's got a limited ability to enter the market already. There have probably been a few cases where a no name guy really did get ripped off and he really did manage to get his day in court and he really did win. On the other hand, there have been cases where cutting your arm off with a dull knife was a good idea - it doesn't make it benefical in general.
Getting rid of this bullshit about process patents and only allowing patents on things that you've actually created and work would be a really good start.

Niche software still safe? by RobertB-DC · 2004-01-23 05:25 · Score: 4, Insightful

We're looking at a future where only the very largest companies will be able to implement software, and it will technically be illegal for other people to do so.

I think Perens' statement may need to be modified to say "... to implement consumer software." I and my team write software that's never seen outside the headquarters of large national banks -- it's a niche market that we're very good at, and nobody else is likely to want to jump into.

So we're safe... "under the radar", perhaps.

On the other hand, we're tightly bound to Microsoft-based systems... so do we even count when Perens talks about "other people"?

By the way, did anyone else read "Perens on Patents" and visualize: ( Patents )

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This won't spell the end to software development by GreenCrackBaby · 2004-01-23 05:26 · Score: 4, Insightful

Software development will not be limited to "the big boys" by patents. It will be limited to "the big boys" in countries that respect patents. This is just history repeating itself. The US went through this cycle with British patents already (where they were completely ignored and innovation blossomed), and other countries will do the same now to US and similar international patents.

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"The market alone cannot provide sufficient constraints on corporation's penchant to cause harm." -- Joel Bakan

treat code like a book by swoebser · 2004-01-23 05:29 · Score: 5, Insightful

Why can't we just treat code like the text of a book? It's illegal to copy text from a book and present it as your own. It is not illegal, however, to create a similar work of your own accord.

Idiocy by mikelu · 2004-01-23 05:33 · Score: 5, Insightful

Patenting of software strikes me as rather nonsensical.

Do we let writers patent plot contrivances and literary structure? Do we let poets patent new rhyming schemes?

Copyright should suffice to protect proprietary code.

On a side note, this is the kind of crap we get in this country when companies can buy whatever legislation they want from corrupt politicians.

Depressing by Space+cowboy · 2004-01-23 05:35 · Score: 3, Insightful

*A* problem is that he's right. *The* problem is that stopping this from becoming a reality (it's sort of already one, but unofficially) in the EU is going to be a long hard slog against the entrenched companies that will benefit from it.

The European patent office has been dishing out software patents like there's no tomorrow simply because it thinks the US model will eventually win out. The "harmonisation" directive raconteur (I think that's her title) was pissed off because people took the time to contact her and give her their view (!) - which was contrary to what she wanted.

Politicians are bemoaning the lack of political interest in the populace. Here's a clue: we get disillusioned really quickly when you simply pay court every N years, then do whatever you want in-between election years. Perhaps if (as originally planned) you were the voice of the people, it might be a bit different.

Sorry. A bit rambling. It's because I'm simultaneously angry and depressed at "the system" :-(

Simon.

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Re:Not Quite by Planesdragon · 2004-01-23 05:40 · Score: 4, Insightful

If you're registering patents just to show off, you're abusing the system.

Or, you're firmly establishing prior art and ensuring that you have sufficient leverage to use someone else's patents.

Indirect or nonfiscal profit is hardly abuse of the system.

This problem will diminish over time by Schlemphfer · 2004-01-23 05:43 · Score: 4, Insightful

From the interview:

We're looking at a future where only the very largest companies will be able to implement software, and it will technically be illegal for other people to do so.

He's probably right on this point, but there's one big qualifier to introduce: The future he's talking about is only the near-future. Unlike copyrights, where post-1930 work is gradually being extended to last forever, patents have a limited length. Right now they last twenty years.

And despite the BS that Amazon has been part of, with their one-click patent nonsense, it looks like people in the industry are growing increasingly uncomfortable with lenghty patents. Even Jeff Bezos, the prime beneficiary of one-click, is pushing to have software patents reduced to five years.

The emergence of the World Wide Web has led to the creation of a whole lot of super obvious ideas that should never have been patented, but were. Right now, software patents are extremely relevant to anyone developing sites or software for the internet. But in a comparatively short time, these patents will expire. And in a few decades, regardless of patent reform, prior art will smother just about any software patent claim that is not truly novel.

So yeah, Perens is right that patents are an enormous threat to developers right now. But the threat is certain to diminish greatly with time.

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Eternal vigilance the cost of freedom... by gillbates · 2004-01-23 05:46 · Score: 3, Insightful

I know its a cliche, but its true.

Yes, patents create a chilling atmosphere for developers in a way much worse than copyright. But the SCO case has shown that the real problem is not patents per se, but greed.

It is an unfortunate reality that we live in a world where someone with sufficient financial means (read: big corporation) can kill an OS project simply by claiming patent or copyright infringement and tying the matter up in the courts for a few years. Even should the defendant be cleared, the intervening years provide Big Corporation(tm) time to either market their own version, or destroy the market completely, as in what Microsoft did with Netscape.

When it comes down to it, most OS developers don't have the financial means to fight a patent or copyright fight with a large corporation. Even should they have the resolve to do so, the Big Corporation can effectively deny the distribution of said software with an injunction until the case is resolved, by which time the software has become obsolete.

Which leads to the problem we face today. Yes, we would like all software to be OS, but the realities of the legal climate and need to feed ourselves means that proprietary software is often the only effective model. Even if we were completely altruistic, any developer capable of developing something new and revolutionary would have to charge for the software, simply to build a war chest for the inevitable IP lawsuits which would follow. The reason why Linux has been so successful is because it hasn't taken revenue away from Microsoft. If Microsoft lost 50% of their desktop market to Linux, you can bet Microsoft would claim copyright or patent infringement. The actual substance of the claim doesn't matter; an injunction against distributing Linux which held for even a year could destroy its adoption by vendors and end users.

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CS is math by MarkusQ · 2004-01-23 05:47 · Score: 5, Insightful

I think the biggest problem with some of the patents we're seeing these days is that the issue of prior art isn't being taken into account.

No, the biggest problem is that software (or any mathematics for that matter) should not be patentable. Society's first big loss was when the fast talking SOBs slipped the false notion that if you could describe a mathematical algorithm in words that made it sound like an invention then it magically was an invention into the cultural norms and started patenting software in the first place.

(Our second big loss has been the "IP" fudge, which is blurring the distinctions between patents, copyrights, trademarks, trade secrets, competative advantages, wishful thinking, bullshit, and marketing babble into one vague pile of lawyer poo).

Affording patent protection to discoveries in mathematics, biology, etc. or copyright protection to numbers, animals, etc. is against the interest of a free society as surely as allowing thought control, albeit the death of freedom comes somewhat more slowly.

-- MarkusQ

Re:CS is math by yerM)M · 2004-01-23 06:50 · Score: 5, Insightful

It's these cases where philosophy can bear fruit or really confuse the issue.
On one side if the coin there are the "platonists" who consider math as the uncovering of ideal, eternally existing, abstract objects. On the other there are the "formalists" who consider mathematics as more of a game where theorems are developed logically from axioms chosen arbitrarily.
Then there is Rueben Hersh's connotation that mathematics is what mathematicians do. In lay-man's terms, without mathematicians there would be no math. He further implies that the math we know is decided by the mathematicians. Consider fluxions versus calculus, two different solutions to the same problem and one was superior. They came about in two different ways because the principle mathematicians were different people.
If we follow the platonists approach then math should not be patentable because it just is. A platonist would consider patenting math like patenting a mountain.
Hersh would contend that math is the creation of the mathematician and hence, as a product of personal endeavor, should be patentable.
In terms of the courts view on software, we are stuck in a Hershian situation, so what is the solution? If we had known that this would be the case, the EFF (electronic frontier foundation) or the GNU project could have started patenting software twenty or thirty years ago, thereby capturing the axioms on which software was founded. THIS is what should piss people off. It pisses me off in computer science and biology. Companies are standing on the shoulders of giants who didn't have the opportunities available to them, especially when most of the underlying infrastructure was built with public funds.
Patents are expensive, but there goal is to offer short-term incentives for development in order to release knowledge into the public domain. Sometimes we forget that patents are designed to release knowledge. However, I would favor a progressive patent law where software patents last only five years and drugs targeted at monogenic diseases that don't affect many patients (like huntington's disease and spinal muscular atrophy) last for forty.
That's just me though.
Re:CS is math by MarkusQ · 2004-01-23 07:27 · Score: 4, Insightful

We don't need to go all the way to phylosophy. The Patent Act (which (IIRC) provides the basis for all patents in the US) says, for example "excluded from such patent protection are laws of nature, natural phenomena, and abstract ideas." This does not depend on the dichotomy between invention and discovery. Up until the mid-1970s by the CCPA (Court of Customs & Patent Appeals) no one thought you could or should be able to patent mathematics.
It isn't a matter of discovery vs. invention; it's the fact that patents are a restriction on the freedom of the people given in exchange for certain disclosure. The exchange is offered by the people when it is to their advantage to do so, or at least that is the constitutional intent. The present system has been usrped by the patentors and is being run to their advantage, contrary to the public good and unsuported by the legal basis on which it stands.
Patents were never intended to cover mathematics, be it discovered, invented, e-mailed by the gods or handed down by little green men on 3x5 cards. Math is not patentable.
-- MarkusQ

Re:Defensive patents by mike77 · 2004-01-23 05:59 · Score: 4, Insightful

...Mutually Assured Destruction. Microsoft isn't going to try to bludgeon IBM with a patent suit, because they know IBM has just as many silly patents to bludgeon them back with.

That's true for the big boys, but it still leaves the problem, that a smaller/newer company which doesn't have the patent portfolio will get sued out of existence if they try to do something using some frivolous patent one of the big boys have.

Say for instance using XML as the basis for your word processor?

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Re:sigh by Halo1 · 2004-01-23 06:39 · Score: 4, Insightful

The problem here is that patents are increasingly and increasingly not about ways to solve a problem and about problems

This is indeed a very important point that's often overlooked. Take for example the claims of this European (granted) patent from Siemens. It's a patent on guessing the word you are trying to type on a mobile phone (e.g., if you type 843, it will show "the" instead of "tgd"). They developed one algorithm to do this, but most of the patent claims are about the problem, not the solution (even the more specific claims).

If you make a processing device coupled to a memory, input device and screen guess the word you want to type, you violate that patent. The more specific claims simply add different kinds of keyboards you can use, that you can also use the frequency of chosen words to guide suggestions, allowing people to turn on/off this guiding algorithm, showing a list of possible words if there's ambiguity and let the user choose from those etc... Not really things that narrow the scope of the claims very much.

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Not ready for prime time by Carch · 2004-01-23 06:40 · Score: 3, Insightful

BP: We have all of the Linux-based software we need for 80% of the people in the world. The other 20% may use specialised applications that are not yet available in open source. And when I say 80%, that's all free software. Far more than 20% of the people in the world play games on their computers. No linux desktop I've tried is ready for prime time when it comes to gaming. Emulation is a non-starter. It's hard enough to get many modern PC games running in the first place, let alone running under emulation or in an otherwise foreign operating environment. It's a mistake to ignore this market segment. Games are a huge technology driver. Without native mainstream gaming support, 2004 will not be the year of linux on the desktop.

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