Perens on Patents

lewiz writes "An interesting interview with Bruce Perens over at the BBC. He's up discussing the role of HP, IBM, et al and the move towards Linux. However, his main point is about software patents and how they are much more of a problem than SCO: '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.'"

Comments

Prior Art

[hipster_doofus]

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.

Re:Prior Art

[Mozz Alimoz]

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

Niche software still safe?

[RobertB-DC]

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 )

This won't spell the end to software development

[GreenCrackBaby]

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.

treat code like a book

[swoebser]

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

[mikelu]

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.

Re:Not Quite

[Planesdragon]

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

[Schlemphfer]

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.

CS is math

[MarkusQ]

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

[yerM)M]

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

[MarkusQ]

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

[mike77]

...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?

Re:sigh

[Halo1]

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.