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

[wankledot]

afaik, the patent office does not look for prior art, they look for prior patents. It would be nearly impossible for them to scour the world for general prior art in each patent they grant, but they can easily look over other patents.

I believe it is up to other inventors to bring up their prior art when disputing a patent.

Re:Prior Art

[Tablizer]

afaik, the patent office does not look for prior art, they look for prior patents. It would be nearly impossible for them to scour the world for general prior art in each patent they grant, but they can easily look over other patents.

Well, that is the big catch-22. Most of the stuff is (seemingly) so common or simple that nobody bothers to patent it. Thus, once somebody does come along with a patent that is butt simple, there is nothing in the existing patent records for it.

The second problem is the newly allowed "business processes". These also have no patent record because they are new. Congress should get off its ass and disallow biz process patents. The patent office says that the courts have allowed them and there are no laws disallowing them. Thus, they will continue to accept them until a law says otherwise.

Re:Prior Art

[angle_slam]

In theory, the patent office does look for all prior art. In reality, they primarily look at prior patents.

Re:Prior Art

[jacem]

One of things you have to remember about intellectual property is that it is all about property. When a company files an IP patent what they are doing is creating an asset. That asset can be assingned a value. The value may not be in anyway realistic, but it does show up on the plus side of the companys accounting.

As an example I file a patent for using computers to send notes to people (very much like say E-mail (and yes I know there is prior art)). But then I have some appraser say that the patent is worth $100 Million. Now on the plus side of my accounting I have a $100 million dollars asset. So I look better on the stock market and my shares go up.


JACEM

Re:Prior Art

[dtfinch]

Don't forget that they last up to 14 years. Like LZW and MP3.

Nowadays, if you're the tiniest bit inventive, you have a great chance of being sued for it. Patents worked well for manufacturing techniques and physical products where development costs can be huge, but in the area of computer science, you come up with an idea and can have a working prototype the same day. Patenting your day's work can cost a few weeks of wages. And people rarely get their work notarized. Computers are a great equalizer. Suddenly the tools to turn ideas into inventions are in everyone's hands, not just the well funded. But patents still only protect the wealthy.

Re:Prior Art

[AndyRobinson]

Given that disputing a patent is an expensive, drawn out process doesn't it make more sense to keep the number of disputes to a minimum by being careful what patents we grant in the first place. I don't see why searching for prior art is impossible. Expensive and time consuming yes, but impossible?

A patent effectively grants the holder a monopoly on exploiting an idea, or anything based on that idea, for a considerable period of time. Here in the UK it's 20 years, which is pretty long time by the standards of most commercial agreements. Given that, I figure getting a patent should be a time consuming and expensive process, if for no other reason to prevent people applying for - and potentially getting - trivial or ridiculous patents.

If the idea/invention is worth protecting by a patent - if it's genuinely revolutionary, or will take years of further development to bring to market - then by all means spend the time and money necessary to patent it. But anything that acts as a barrier to patenting an idea that some has whilst cleaning their teeth in the morning ("one click ordering" for instance) has got to be a good thing.

Re:Prior Art

[questamor]

This is unfortunately how it ends up working:

bigcompany patents something obvious
smallcompany says "hey this is my patent!"
bigcompany goes "prove it"
bigcompany and smallcompany go into a legal battle over it and bigcompany drains smallcompany through endless legal wranglings.

I once advised a friend who jokingly said to me one of his IM "inventions" was patentable, and that he should go get a patent on it. I told him it shouldn't be a joke, and he should indeed patent it.

2 years later a large company came up with that exact feature, patented to themselves.

The only way to win in this patent system is to use it, currently. If you have an idea you're using, a unique one, patent it. now. then release it under license to anyone in return that they do the same with one of their patents, or patents in products that use your patent, or something.

Gnu Patent License, anyone?

Re:Prior Art

[Tablizer]

In theory, the patent office does look for all prior art. In reality, they primarily look at prior patents.

Most original ideas that corporations stumble onto are never published. They are essentially trade secrets as far as the company is concerned. Besides if they publish them, others may sue them for patent or copyright infringement. Thus, they often keep quiet. However, now they are starting to patent everything in the book to at least protect themselves. It is snowballing.

I did some work for a large telecommunications company that successfully patented some automatic auditing algorithms, something that I thought was not that special, just some IF statements over statistical measurements to detect suspicious trends. It is the sort of thing that would remain internal before all this patent and counter-patent mess.

Re:Prior Art

[Short Circuit]

Before a patent is accepted, it's put up for public display, for anyone to dispute. What we really need is a user-powered web site (Another OSDN partner?) that watches patents as they are put up for review, and looks for prior art.

Software patents would preferably be monitored (I can't imagine a user-based organization large enough to monitor all the different patents), but I guess other topical patents would be acceptable too.

If OSDN is interested in making that a job, they can email me. :) I'm sure there are a lot of out-of-work software developers who would also be interested in being hired for a job like that. Show that telecommuting can work. :)

Keep in mind that "prior art" does not include stuff written as soon as the patent is seen. It has to be prior to when the patent was filed. (IANAL, but that's what seems likely to me.)

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

Re:Prior Art

[dissy]

The USPTO states in their process manual that they _are_ the ones that should search for prior art before approving a patent.

You can find the exact section here on their website

The main page of their Manual of Patent Examining Procedure is at this link.

To quote the sections that apply here:


1.104 Nature of examination.

(a) Examiner's action.

(1) On taking up an application for examination or a patent in a reexamination proceeding, the examiner shall make a thorough study thereof and shall make a thorough investigation of the available prior art relating to the subject matter of the claimed invention. The examination shall be complete with respect both to compliance of the application or patent under reexamination with the applicable statutes and rules and to the patentability of the invention as claimed, as well as with respect to matters of form, unless otherwise indicated.

Re:Prior Art

[HiThere]

They SHOULD look at prior art. If they aren't now legally required to, they used to be required to look for prior art. In reality they don't even look carefully at prior patents. I can't remember enough to find it right now, but it's happened before that two different patents were issued for the same invention that was just described differently.

And do you have any idea of the risks and costs involved in challenging a patent? Some of the numbers I've seen would daunt a profitable company, much less an individual.

The main hope is that patents run out. The problem is that they don't carefully vet the current patents to ensure that prior patents don't cover the same thing.

And the major problem is that they allow excessively broad patents. If they limited the patent to what had actually been invented, then the damages that they do would be much less severe.

Patents were a promissing idea. And they probably has social use during the early days. But in the last 40 years or so I've heard of no constructive uses of patents and I've heard of many per year of destructive uses. Companies that never file a patent complaint that need to keep entire departments of lawyers busy filing patents just so that nobody can use their own inventions against them. Patents have become a massive government financed protection racket.

Patents have become a massive government financed protection racket. And software patents are the worst part of the racket. (Well, business method patents may be a close second, but there aren't as many of those yet.)

Re:Prior Art

[HiThere]

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.)

Re:Prior Art

[FroMan]

I'd patent that idea... then license it to OSDN. ;-)

Re:Prior Art

[Medievalist]

They SHOULD look at prior art.

I agree. I also think that gravity SHOULD modify itself locally whenever I drop something breakable.

The amount of data that would have to be examined to implement your "SHOULD" grows exponentially with time. Or, to put it in geek terms, tax-funded prior art searches don't scale.

I guess your self-righteousness is slighly more feasible than mine, though. Damn gravity!!!

Re:Prior Art

[Anonymous Coward]

The Patent System is based on the old mechanical model, where every minor invention was patented (because your competitors would just disassemble your machine and copy your stuff anyway). You could argue that the computing industry relied far too heavily on the "trade secrets" of compiled binaries.

There was a time when many very basic machines were patented. What happened? People just waited 20 years until all 'easy' patents expired.

17 years might seem like forever in "Internet Time", but it probably seemed like forever on "Industrial Revolution Time" as well. Eventually, there will be a vast library of prior art in computing techinques documented in expired patents and all will be well. In fact, this is already happening (RSA, LZW).

Re:Prior Art

[ilikecaffeine]

Keep in mind that "prior art" does not include stuff written as soon as the patent is seen. It has to be prior to when the patent was filed.

So, if we limit ourselves to finding prior art for software patents, there's an even more effective method. I propose a three point plan:

• Monkeys
• Typewriters
• Time

They will spew out prior art for every future software patent. Simply toss the stuff that doesn't compile, and make the rest searchable.

"We're not sure exactly how this code works, but we're fairly certain it's functionally identical to this patent application."

p.s. I have submitted a patent for this very anti-patent system, so don't even try to implement it. My other monkeys will track you down, and they will hurt you.

Re:Prior Art

[Anonymous Coward]

* Monkeys

* Typewriters

* Time

I thought that's what Sourceforge is!?

Re:Prior Art

[Short Circuit]

Sorry...

That method of hurting me was demonstrated by Stanley Kubric in 2001: A Space Odyssey , and patented shortly thereafter. The fact that no government in the world recognizes the Monkey Patent Association is something you'll have to forget...

Re:Prior Art

[Tablizer]

The Patent System is based on the old mechanical model, where every minor invention was patented (because your competitors would just disassemble your machine and copy your stuff anyway). You could argue that the computing industry relied far too heavily on the "trade secrets" of compiled binaries.

I think what is really needed is a government or "official" service that allows one to "date stamp" documents as evidence that the idea existed and that a company claimed it at a particular time. It would just record an event or claim, not evaluate the merit of it. That way if somebody came along later with a patent, you at least have evidence of prior art. It should be a lot cheaper than patents because there is no human evaluation of claims. Plus, it would not go into public domain. The closest we have now is [what are those called where they have a license to stamp documents and record the date they stamped them?]. But those don't keep a copy of the document itself and stamps can be faked with enough money.

Re:Prior Art

[russellh]

Before a patent is accepted, it's put up for public display, for anyone to dispute. What we really need is a user-powered web site (Another OSDN partner?) that watches patents as they are put up for review, and looks for prior art.

patentslash.org maybe?

Re:Prior Art

[ThosLives]

Given that, I figure getting a patent should be a time consuming and expensive process, if for no other reason to prevent people applying for - and potentially getting - trivial or ridiculous patents.

Part of the problem with making patents expensive is that it then makes it more difficult for the garage inventor to get a patent, who is whom patents are supposed to help. I think, originally, patents were to protect the "small" guys from the "big" guys - think about it, why does a big huge company (and I work for one; our annual revenue is about $165 Billion) need protection when they can afford $100 Million in equipment to make it en masse tomorrow, where the little garage guy can't?

I think I'm going to work on a proposal where you can only work on a patent if you don't have the capability to do something already, and that you can't transfer a patent to [a big company] either. I'd have to do some thinking on how to make this work fairly, to be sure, but the patent system currently does not promote innovation; it merely promotes fear of getting sued.

As far as "prior art" is concerned, I think the bigger issue is not "prior art" but "obvious to someone skilled in the art." Most of the stuff getting patented might not be in prior art, but it sure as anything is obvious to people skilled in the art. That, in my book, is the real shortcoming of the current patent examination process.

Re:Prior Art

[Rich0]

Can anyone who is more knowledgable comment about the truth of this assertion? My understanding is that patents are not made public before being issued. This has led to the concept of the submarine patent.

Think Rambus and SDRAM. They were on a standards body which was supposed to come up with a baggage-free RAM standard. They did a patent search and found that the technology which Rambus was pushing was not patented and so they went with it. Then a year later Rambus is issued a patent for it - they had it in the works the whole time, but because their initial application was only a "preliminary" one, it was not public knowledge. Now the whole world is using a proprietary RAM technology and Rambus is asking for license fees. It wouldn't have been half as bad if they weren't the ones who pushed it under the deception that this was unpatented technology.

I'm all for the guy who builds the better mousetrap being able to make some money off of it. These days, however, patents are used so that a company can make one product and sell it for what the market will bear for a decade and half, long after they've recouped their R&D costs. They also use them as weapons to stifle innovations elsewhere.

Patents should be an incentive to increase innovation, not a weapon used to prevent it by those who are doing well under the status quo...

Re:Prior Art

[Kiriwas]

Do you mean a notary?

Re:Prior Art

[Fjord]

Actually, I think it only follows an O(n^2) pattern

GLAVIN!!

Re:Prior Art

[PigeonGB]

Before a patent is accepted, it's put up for public display, for anyone to dispute. What we really need is a user-powered web site (Another
OSDN partner?) that watches patents as they are put up for review, and looks for prior art.

Not true. It is possible for a patent to be submitted without it becoming public knowledge. This allows the company to keep the possible patent under trade secret status, especially if it is the case where the patent is rejected.

It is only presented to the public after the patent is approved.

Re:Prior Art

[AhBeeDoi]

I think US patents are only applicable in the US. If a similar patent exists in another country, it would not have any bearing on granting a patent in the US.

Re:Prior Art

[AhBeeDoi]

I think there was a litigation over who owns the patent over the laser. I don't remember the names of the 3 parties but there was an inventor who actually came up with the first working laser, the two scientists/researchers who applied for and received the patent and another fellow who as a student had his notebook detailing his ideas for the laser notarized prior to other existing claims. I don't know the ultimate resolution of the patent claim.
Although laser technology is ubiquitous today, it took many years before the technology became widely applied. In the case of laser technology, I don't think that patent protection arrested its development and adoption into everyday use. However, ideas, especially some of the bogus Internet-related patents applied for after the fact, do affect widespread acceptance of technology.

Re:Prior Art

[nothings]

This is a huge myth.

Prior Art is NOT the biggest problem, because prior art can be addressed in court. (It sucks, and costs money, but it can be addressed.)

Obviousness is the big problem. Inventions are supposed to novel (no prior art) and non-obvious. The granting of patents on obvious inventions is the big problem. As far as I can tell, this can't be addressed in court. (I guess because you bring in your expert witness to say it's obvious; they bring in theirs to say it's not. I don't actually know; I've just never heard of it happening.) Upon occasion, you do hear about the patent office deciding to reexamine a patent, but it's pretty rare.

95% of the time I read on Slashdot about something being patented and people run around starting to post "wasn't this prior art", the thing being patented is the obvious solution to the problem. Half the time, the patent is really just on the problem: "we have patented the idea of solving this problem", e.g. displaying if the other person in an IM session is actively typing.

(Well, and then the other big problem is the profit motive; those in favor of software patents--the PTO, patent lawyers, and current patent holders--all profit from them, even if the public doesn't.)

Re:Prior Art

[HiThere]

I can't really say that Marx was stupid, because he manifestly wasn't. But he sure didn't understand the industrial revolution. And this is a long time since then.

Anyone still using the categories that were talked about then to deal with "information" doesn't understand what's happening. And that includes using them as epithets.

The enclosure acts, where the lords walled off a piece of the commons did happen. And they were vile. I'm not saying that it can't happen here, I'm saying that having it happen is destructive to society.

Re:Prior Art

[k8er]

Apparently the German patent office looks diligently for prior art (or used to). TechRepublic Geek Trivia

Re:Prior Art

[HogynCymraeg]

afaik, the patent office does not look for prior art, they look for prior patents.

AFAIK, the patent office does not look for anything.

Re:Prior Art

[Sanction]

Or, to put it in geek terms, tax-funded prior art searches don't scale.

Then I guess we can be thankful that prior art searches are not funded by taxpayers at all. The USPTO is fully self supporting through fees and, unfortunately, much of that funding is then sucked away by congress to the general fund. It scales just fine, more applicants, more searches, more fees.

Re:Prior Art

[arkanes]

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.

Re:Prior Art

[crazy_monkey]

It's in the Patent Office interest to grant patents - the more patents they grant the more revenue they get.

And the brutally obvious solution.....
For every patent that's overtured with evidence that was well documented at the time, they pay a fine. The more false patents, the less revenue they get. Of course, "well documented at the time" requires a judges discretion, but how would the patent be overturned in the first place?

Re:Prior Art

[gnu-generation-one]

"GNU Patent License, anyone?"

How is that possible? The original owner of the patent will always have the power to prevent it being used. It would be nice, certainly, if someone could come up with a GPL-like patent license.

The UK department of trade and industry actually responsed to my concerns on software patents (sorry, computer implented inventions ugh!) by saying "the existance of copyright didn't stop Free Software, so why should patents be any different"?

Yes that's right, the DTI doesn't understand how patents work. Why am I not surprised?

Re:Prior Art

[AndyS]

Gee, guess we got the same total retard then.

I got a letter from Lord Sainsbury's saying much the same.

It really scares me how retarded our government is over technical issues. It scares me more that they don't even ask for help.

Re:Prior Art

[Hugonz]

(and I work for one; our annual revenue is about $165 Billion)

Boy, you're wealthy...!

DISCLAIMER: I'm supposed to be working for Cisco, so this is no attack, just the sad reality.

Re:Prior Art

[1,$d]

If all you want is to keep ideas free, you shouldn't need a patent on them. Just publish them in an easy-to-find location as "anti-patents".

Set up an anti-patent database, findable on the web through obvious domains (unpatentable.org, anti-patent.org, etc). Accept all submissions of ideas, completely keyworded and timestamped, just as searchable as the USPTO's patent database. It doesn't matter too much if the same idea is submitted twice; advise people to search and avoid that, if you want to save disk space. When you find out an idea in the database is patented, leave it in the database but add references to the patents. Maintain security of the database and accuracy of timestamps, because without credibility the database is worthless.

A centralized site like this makes it easy for anybody who wants to use these ideas to say, "Look - you can't sue me for using your patent; this idea was published to the world two months before you filed for patent." (IANAL)

As a side effect, patent examiners could use the database to find prior art, but they don't have to use this system for it to help.

Don't expect the USPTO to do the job you want them to do. You know they're broken, and they'll drag us through thousands more bad patents before they change, if they ever do. Here: the new Director of the USPTO as of 2004-01-12 touts his help getting the DMCA passed: Jon Dudas. What more do you need to know?

Fixing the broken USPTO will take time, organization, money, and expertise. Publishing anti-patents outside of any government might be the simplest way. Maybe the EFF could organize the effort.

People outside the US have different laws and jurisdictions to worry about. But this database might help in those jurisdictions too (e.g. Microsoft patenting obvious XML usage in Europe).

Re:Prior Art

[LionKuntz]

The patent office is required to notice prior art, not just prior patents. Patent applicants are required to disclose prior art that they are aware of. An oath under penalty of perjury, signed by the patent applicant is required in patent apps.

Bringing up prior art invalidates more than 50% of all patents challenged.

Notifying USPTO of prior art invokes an "interference" which invokes a re-examination if the notification of prior art is significant, and can/does lead to invalidating some or all of the claims of a patent.

Re:Prior Art

[LionKuntz]

Before a patent is accepted, it's put up for public display, for anyone to dispute. What we really need is a user-powered web site (Another OSDN partner?) that watches patents as they are put up for review, and looks for prior art.

This is simply not true. Patent applications are confidential until the day a patent is issued. "Submarine patents" emerge from the patent secrecy process and have exclusive rights to ideas invented elsewhere afterwards which are in then present use.

The FIRST inventor who "reduces to practice" wins the race. Filing a patent app is a strong example of "reduction to practice", as the teaching of the invention will be published by the patent office itself for all the world to benefit from (eventually when the patent expires).

Re:Prior Art

[Shirotae]

See Research Disclosure. It is a place where ideas can be published so as to establish prior art. Publishing other than in a patent means giving up the right to patent; that means you can't stop other people using the idea, and they can't stop you.

The people who stamp documents are notaries. If that is not good enough for you then you need to focus on what will stand up in court against whatever adversary you are considering.

If you can prove that you knew something before it was patented, there are some very limited rights to carry on using the idea at least in some jurisdictions, but don't expect this to be a cheap option if the issue arises.

Re:Prior Art

[Medievalist]

It scales just fine, more applicants, more searches, more fees.

Unless you are planning on increasing fees as the bulk of prior art to be searched increases, no it doesn't. However, if you do intend to "pass the cost on to the consumer", congratulations, you've just created a system that punishes the self-funded independent inventor even more than the current system does.

Not Quite

[abrotman]

These companies will be the only ones developing software if they actually choose to enforce the patents. IBM has more patents every year than any other company(like the last 5 years running i think), but I haven't seen a high-profile case where IBM went after Joe's Software Shack for IP infringement(doesn't mean it hasn't happened).

Yes, patents are evil, but mostly only when they are enforced, otherwise it's more of a "Hey, look what we thought of".

Re:Not Quite

[kcornia]

No, patents are evil because it can be argued that even the fear of having one enforced can stifle development.

ESPECIALLY given the incredibly broad patents that are being approved/issued.

I agree with the interviewee that this is one of the biggest problems needing to be addressed, or software development and innovation will suffer more and more.

Re:Not Quite

[Boing]

Yes, patents are evil, but mostly only when they are enforced, otherwise it's more of a "Hey, look what we thought of".

God, tell IBM to get a damn blog instead, and they can toot their own horn there. Patents are supposed to be about the enforcement of patent protections, followed by release to the public for everybody's gain. If you're registering patents just to show off, you're abusing the system.

Re:Not Quite

[Tassach]

Patents are supposed to be NON-OBVIOUS to a skilled practitioner of the art. One of the major problems is the large number of "no duh" patents being issued. (EG: Amazon one-click, laser pointer used as a cat toy)

Until the USPTO stops issuing frivolous patents for techniques that any third-year comp sci major could have derived independently, we're in for a bad time.

Re:Not Quite

[gr8_phk]

Perhaps IBM or another large player could get some key software patents and only allow their use in GPLed software. Just a few key innovations or "new ideas" that are likely to catch on. The system can work both ways, it's just that OSS developers don't usually have the money to get patents due to the free (as in beer for once) nature of their products.

I'm still contemplating a patent on a key aspect of software I might release under GPL. It'd be expensive though.

Re:Not Quite

[scharkalvin]

Patents are also used to defend against OTHER patents. "You license my use of your's for free and I'll let you slid on mine"

IBM's way of using patents.

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.

Re:Not Quite

[Aidtopia]

IBM has more patents every year than any other company ..., but I haven't seen a high-profile case where IBM went after Joe's Software Shack for IP infringement....

In my experience, IBM does attack medium-sized developers with frivolous patent threats. Fortunately, the company I worked for when I encountered this refused to back down. In one case, we spent two years explaining that our code was not infringing on their patent (scaling fonts for print-preview). When they finally accepted that, they hit us with a different one. It was arguably obvious and unoriginal (showing print-preview and the source document at the same time). Rather than fight it, though, we tweaked our product so that you couldn't see the other windows while doing a preview.

I suspect IBM tried this on lots of other companies as well, because I started seeing more and more programs doing the same thing we did, including ones that came from smaller labels. (I guess we should have patented our technique for avoiding IBM's patent.)

Re:Not Quite

[God! Awful 2]

Perhaps IBM or another large player could get some key software patents and only allow their use in GPLed software.

Perhaps IBM will amass millions of submarine patents, simultaneously contribute infringing code into Linux, and then save up for the day when Linux is deployed on the desktop. Then they can sue *everybody* (and have more of a case than SCO).

Just the conspiracy nut in me...

-a

Re:Not Quite

[kfg]

Patents are supposed to be about the enforcement of patent protections. . .

The fact that I own property does not require me to throw razor wire around its perimeter.

Property, real or intellectual, is supposed to be about the rights of the owner to do with it as he wishes.

KFG

Re:Not Quite

[divec]

IBM has more patents every year than any other company(like the last 5 years running i think), but I haven't seen a high-profile case where IBM went after Joe's Software Shack for IP infringement(doesn't mean it hasn't happened).

I read this article about IBM going after Sun when Sun was small. According to the article, they ended up saying, "maybe you don't infringe these seven patents. But we have 10,000 US patents. Do you really want us to go back to Armonk and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?"

That's basically saying it's impossible to run an innovative IT company without infringing on IBM patents.

Re:Not Quite

[benja]

Yes, patents are evil, but mostly only when they are enforced, otherwise it's more of a "Hey, look what we thought of".

They're also a problem when you don't know whether they'll be enforced, and if they are, you don't know whether the courts will make a reasonable decision, and if they don't, you could be personally liable for damages. Even more of a problem when you have a family that would be affected as well.

Re:Not Quite

[Short Circuit]

Where does that place trademarks, though? If not enforced, a trademark is lost.

Re:Not Quite

[rzbx]

Make a guess as to why IBM does this. Protection. The value of patents is the protection it provides against others with patents. Like an arms race. All sides are building up ammunition just incase they may ever need it. Do the patents help progress? Rarely in any field they do, especially software. Patents today have two main purposes. Protection from others with patents and a source of income. Imagine all the time and money that companies spend to file all these patents. Sure, the idea of a patent had a well meaning purpose. Unfortunately, it continually grew into an entire field for a new type of lawyer. Do companies win? Not at all. It takes time and money to copy another companies idea. The best choice is to stay ahead and keep working. Yes, there are particular areas of research and development that may warrant a monopoly or funding by the government or some other organization. But creating an entire system for "protecting" an idea?

Going back to what you said. Yes, they are inforced. We just don't know about it. First, not all of it ends up in court, and second, how much time do we spend looking into court records on lawsuits about patents? I believe in enforcing laws that discourage plagiarism, thus giving credit where it is due and forcing companies to see their employees for the work they do. I don't believe in patents, which have slowly shifted our view to companies and not individual contribution, and create a govt granted monopoly on an idea that only creates more complications (court time, lawyer time, employee time, court costs, lawyer costs, etc.). A world without patents would shift our focus on people and the companies that hire the best and continually stay ahead of the game and worry less about "protecting" their past products.

Re:Not Quite

[Short Circuit]

How much of your "no-duh" is "I've thought of that before," and how much of it is 20-20 hindsight?

I suspect that a lot of uproar about patents is hindsight rather than prior-art.

Re:Not Quite

[westlake]

Perhaps IBM or another large player could get some key software patents and only allow their use in GPLed software. Just a few key innovations or "new ideas" that are likely to catch on.

IBM's interest in "free" software is pragmatic not ideological. It will not simply turn it's back on markets where there is real money to be made and customers for whom the GPL is not a viable option.

Re:Not Quite

[HiThere]

Patents are evil, whether enforced or not. But they're a lot more evil if you enforce them.

OTOH, if patents are held for defensive purposes only, then one can easily argue that this is merely sensible self protection in the current legal environment. IBM would need to be crazy to not patent things, given the current legal environment. If they didn't, then someone else could sue them.

If there were no patents, then there would be a great expansion of trade secrets. But I feel that would be LESS damaging to society than the current patent craze. Actually, MUCH less damaging.

Right now, if someone has a patentable idea, then they are in a no-win position. If they patent it, they are committing an evil (and may be sued), and if they don't patent it then if they reveal it, someone else may patent it and sue them. And it may turn out to be an independent discovery that is already patented. Or not.

Patents are merely one of the evils of the current system, and by no means the largest. But they are one that directly impacts all professional programmers.

Note also that the very existence of patents on program is an argument in favor of closed source. If you keep what you are doing secret, then nobody will know about it, so they CAN'T sue you for patent infringement, even if YOU know you are guilty. VILE! VILE!

There IS not decent argument in favor of the existence of software patents. But given that they exist, there is a decent argument in favor of obtaining them. At least if you can afford a lawyer to defend yourself with. (But do note that patent suits tend to be a lot more expensive than other suits.)

And one interesting feature of patent law is that you had better not try to avoid violating a patent. If you study patents with the intent to avoid violating them, you expose yourself to multipled damages. You're much better off just not having any idea. And I'm told that patent law is so wierd that ordinary lawyers are forbidden from expressing an opinion as to what a particular patent means. So you have to take the risk on your own, or hire a true specialist to have an opinion. And that's not cheap.

Re:Not Quite

[kfg]

Now that, unfortunately, is a fairly deep question not only of legal philosophy, but legal metaphysics.

A trademark is not really intellectual property in the way that a patent or copyright is. It is a mark, a unique indentifier, thus a matter of public perception.

In a sense a trademark is actually the intellectual property of the public, which the public may usurp or reassign; and it's this capability of the public that results in the legal principle of having to defend a trademark.

Such public perception has no relevance to patents which are titles granted by the government just as title is granted to real property.

This is not to say that rights to real property or patents can't be lost through nonprotection. If you allow someone to establish a right of way across your lands for a certain number of years that right of way becomes an easement whether you like it or not. But such is a willful abrogation or your rights. What's more an easement granted to an individual is not a loss of rights to the public the way a loss of trademark rights is.

KFG

Re:Not Quite

[dyte]

Of those people who remember 1979, what would have happened if the current patent laws were around back then.
Visicalc technology is used in almost everything financial, in fact the concept of using a command key (like "/") to get to a menu is pretty similar to using a "start" button.

Re:Not Quite

[Tassach]

A solution is obvious in this context if an engineer who has no knowlege of it is able to create it independently. Let's take the infamous laser-pointer-cat-toy patent. Anyone who has a cat knows most of them like to chase bright spots on the floor. (My old cat would go nuts chasing the refection off my watch crystal). If that person picks up a laser pointer, it won't take them long to say "hey, I bet my cat would go nuts over this".

Re:Not Quite

[Rich0]

Patents exist to serve the people of the country that grants them - not the inventor. The idea of a patent is that people believe that inventors are more motivated when they can profit from their inventions through a temporary monopoly. There is no God-given right to a patent.

The purpose of the patent system isn't to give corporations leverage against other corporations.

Think of patents like guns. Most people think that a person using a gun to hunt or tame the wild, or even to protect their own home is a good use of a gun (I'm guessing that most anti-gun activists don't object to these activities so much as the other things guns tend to get used for). Even so, guns can be dangerous if not used carefully - and so are patents. Now, think of corporations as gangs and think of what happens when you issue guns left and right to any gang member who wants one.

Corporations are out to protect their own interests. As long as their interests are aligned with those of the general public, the public should help corporations achieve their missions. When corporations are acting against the public interest, their powers should be quickly curtailed.

Re:Not Quite

[Short Circuit]

I think I see your point, but in that particular patent, what was unique to the patent was the fact that the later pointer attracted the cat by infrared, not by visible light.

(Which is kind of silly, since I've never been able to get my cat's attention with remote control.)

Re:Not Quite

[Planesdragon]

Patents exist to serve the people of the country that grants them - not the inventor.

No, the patent system exists to beneift the country. Individual patents are designed to benefit the inventor.

Like I said, it doesn't matter if IBM uses their patent for lawsuit-insurance or profit--the exlucivity grant is for their benfit, as as long as they file the application, the system doesn't care what they do with it.

Re:Not Quite

[WNight]

Cookies were created to enable a saved state even in a stateless server environment, pretty much to allow shopping carts and such. The technology was created with this stuff in mind - that means that it couldn't have been that amazing when Amazon implemented one-click patents.

The one-click was a new idea, but it wasn't a device. It was a way of offering a service more comparable to offering blue cars instead of red, than a patentable technology.

Patents need to be new, AND contain some technological device. New alone is like crazy-gluing a calculator to a phone and selling a calculator phone. The technology aspect would be if you had to invent a way to shield the calculator from the phone.

So you are correct, I never though of one-click shopping, but I never though of gluing calculators to everything either and it's not patentable, despite the popularity of calculator-covered crap I see in novelty stores.

Re:Not Quite

[kallisti]

Make a guess as to why IBM does this. Protection.

Yeah, that's what the Mob calls it, too.

Re:Not Quite

[servoled]

That may be your definition of obviousness, but it is not the definition that is defined by law.

Re:Not Quite

[inode_buddha]

Interesting idea. FWIW the fact is that filing and maintaining a patent can be amazingly expensive. This is probably what puts off most of the "small players" in the first place. As an example, a buddy at work wanted to patent a production process (and sell the patent to the company), but lost interest as soon as he saw the $385 USD price just for the initial application as an individual. The USPTO makes all the forms and schedules available here.

Re:Not Quite

[87C751]

what was unique to the patent was the fact that the later pointer attracted the cat by infrared, not by visible light.

So, in other words, the patent was for the observed behavior of a cat.

Re:Not Quite

[Tassach]

AFAIK, the "skilled practitioner" test *IS* the law (or at least it is supposed to be).

Re:Not Quite

[servoled]

That is how the law is written, however the courts interpret the law, and according to the courts to establish obviousness one must provide dated references which together contain all parts of the claim and motivation (from at least one of the references) to combine the missing parts of one of the references with the other to form a single system.

Even if you are "one skilled in the art", you can not simply look at something and say that it is obvious (in the context of patent law at least). You must be able to prove that it is obvious using references which have dates prior to the filing date of the application.

ugh

[digitalsushi]

'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.'"

Well, that will work out good when in the future we all work at The Company.

Re:ugh

[mgs1000]

Weyland-Yutani?

Re:ugh

[digitalsushi]

Ash... That transmission. Mother's deciphered part of it, it doesn't look like an SOS.

Re:ugh

[Zeriel]

Since when is "Alien" anime?

Stupid troll. =P

Re:ugh

[Veramocor]

Funniest website ever!!!

Its nuts

[Zeinfeld]

Bruces says all that can be said, these patents are being given away to people who didn't invent what they claim. Basically it comes down to the ability to imagine a possibility.

Several people have filed patent claims on work I did, in one case 5 years after the idea had made its way into Apache.

And do't get me started on shopping carts...

Re:Its nuts

[Short Circuit]

Have you pointed its presence in Apache out to the USPTO?

Re:Its nuts

[Zeinfeld]

Have you pointed its presence in Apache out to the USPTO?

No, instead I told the MIT prof concerned that if he did not withdraw the patent claim I would make a formal complaint to the MIT proctors of plagarism. He complied.

Although the USPTO does not publish patent applications the Europeans do.

Re:Its nuts

[Short Circuit]

IIRC, the USPTO is supposed to publish such applications. That's how people are able to contest them before they get approved. Anyone have a reference?

Sources for Software Patent research?

[ckathens]

Anyone have any quality sources for this dispute on Software Patents? I'm a law student and would like to look into it. Looking for arguments from both sides. Thanks!

Re:Sources for Software Patent research?

[xiox]

RMS gave a rather nice talk on this in Cambridge. Not sure whether it counts as a legal source!
Here

Re:Sources for Software Patent research?

[__past__]

Since Perens talks about the european situation: the software patent site of FFII is quite informative about this.

Re:Sources for Software Patent research?

[kfg]

How about going right to the source of American patent law?

Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not. -Thomas Jefferson

No Patents on Ideas

KFG

Re:Sources for Software Patent research?

[sloptaco]

No such ideas. But I did have a great idea as a counter attack to all the patents being claimed by large coorporates. I say we form a comittee: IOSBCFCSAPOJAEICT

Read:
"International Open-Source Based Committee for claiming silly-ass patents on just about everything including Computing Technologies"

The idea would be to have patent experts and techinical gurus work on developing patents to belong the open source community and apply to every industry we can imagine.

I have a working concept for patent. "Stabilizing grounded objects using natural forces of gravity." Hey, some guy got a patent for "swinging sideways" - Links anybody???

--sloppy

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 )

Re:Niche software still safe?

[Anonymous Coward]

Be careful, if you ever write anything resembling a database, you could be in violation of a patent for "multi-dimensional" spreadsheets with the ability to cross reference fields across the dimensions. I don't recall the patent number, but it was linked to as one of a portfolio of patents in a slashdot article. The essential problem is that there are more words to describe solutions to problems than there are problems, meaning the patent office can't identify duplicate patents without understanding all of the modern computer algorithms. That's hard.

Re:Niche software still safe?

[iminplaya]

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

Until the BSA(?) raids the place and decides you're using somebodys patent in your homebrewed software. It could happen. "Patents promate innovation" is a lie, a hoax to get you to believe that without it we would all die.

Re:Niche software still safe?

[pHDNgell]

I and my team write software that's never seen outside the headquarters...

At my previous company, we had a few patent complaints against us where people were making assumptions about our internal processes. It cost us lots of time and money.

Point is, they don't even have to see you violating the patent. It's kind of a ``They're in the business of X, so they *must* be doing Y.''

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.

Perens interview?

[daeley]

Speaking of interviews with Bruce, wasn't there supposed to be a /. interview with him? I remember submitting questions but not seeing the answers.

Future headline Microsoft vs. Open Office.org

[c0bra1]

I wonder how much longer it will be before microsoft sues the makers of open office.org for patenet infringement.

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.

Re:treat code like a book

[Anonymous Coward]

because you can't patent a book. What you have on a book is a copyright. Copyrights protect only the expression of an idea, not the idea itself.

Re:treat code like a book

[ev1lcanuck]

I've always said patents are for things and copyrights are for thoughts. Being as software is not a thing, it is data that you can't pick up and hold in your hand and look at and smell and feel (unless printed, but that would be ink and paper).

You can pick up a book and smell it and feel it but it smells and feels the same is the book that was sitting next to it on the shelf and the book that sat next to that book. The story contained within the book, of course is different than the one in the book next to it.

You can treat software the same way. Unless you have something physical, it shouldn't be patent-able.

Re:treat code like a book

[daeley]

I think that was the point, making code copyrightable, not patentable.

Re:treat code like a book

[Jerf]

Well, "create a similar work of your own" is a bit fuzzy; if it's close enough it becomes a "derivative work", but that's handled tolerably well in copyright law.

It's interesting to note that software is already treated like the text of a book; software is the only thing I know of covered by both patents and copyright. Is anybody surprised the system is unbalanced as a result?

The patent system and the copyright system were never designed to interact; of course this is only one small example of the general problem of previously seperate domains starting to interact thanks to the Internet.

sigh

[dAzED1]

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

A decade ago (when it would have been easier for me than now), I was hesitant to go into music. The reason? I felt like there were only so many notes, so many rythms...and that every song of merit that could be written already had been.

Fortunately, I was wrong.

There will still be new ways of doing things. New languages, new platforms, new audiences, new ways at solving the same old problems.

Had Linux not come along, we'd be in MS world right now - UNIX owes it's life to Linux at this point (Linux kept it relevant). Point being is that it did. Everything that is "obvious" as a solution nowadays was radical, or even considered impossible, not that long ago. So what will be the solutions of the future? If I knew, and then told you, you'd probably either laugh, or think me insane.

The circle of life - the world is funny that way - Why? No one knows. Its magic. Yummy.

Re:sigh

[dAzED1]

oops...forgot to mention that not only will there be new ways to solve the same old problems, there will be all-new problems ;)

Re:sigh

[mcc]

The problem here is that patents are increasingly and increasingly not about ways to solve a problem and about problems themselves. The patent office is unable to tell anymore what is or is not a good patent, so it's just a huge land grab where each grab covers an infinite space of implementations. It's gone from patenting a specific implementation of plug-ins to a browser to patenting the idea of plug-ins to a browser itself.

It doesn't matter if you come up with a new way to do something. Very likely, your new way to do something is already covered by someone else's overbroad patent just by nature of what it does. Even more likely, someone else will independently come up with the same great new idea a year after you do, and patent it. And unless you are a very large company with the capacity to initiate and fight a protracted patent ownership battle in court, they will get to keep the patent, not you.

In the meanwhile, *maybe* you will be able to dance carefully around the huge holes created by the patents on what programming techniques techniques you can use. However this will mean careful knowledge of the patents out there, detailed lawyerlike scrutiny of every single line of code you write, and the preparedness to spend lots of money defending yourself against frivolous patent lawsuits whether you violate a patent or no. If you have to sanitize *everything* you do against umpteen million patents, that is a huge undertaking for a program of any size *ON TOP* of writing the program itself and it creates a major barrier to entry.

And all it would take to reach a point like that would be for the patents the patent office has *already granted* to be enforced.

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.

the answer is obviously: previous art. . .

[heller]

Yes. All we Open Source people have to do is keep our innovations ahead of the people that will patent it. Then, if they try, we claim previous art and nullify the patent. Eventually patents become useless because everything is done in Open Source first!

** Heller

Re:the answer is obviously: previous art. . .

[angulion]

While that migth be true, I very much doubt that your, or even FSFs, pockets are deep enough to prove it in a court if you'd have one of "the big boys" at the other end. Unfortunatly.

Re:This won't spell the end to software developmen

[sTalking_Goat]

I can believe it. Bruce Sterling wrote a book like this. When three companies wind up owning the US software market, China will just jump in. Who's going to stop them?

It'll be like a certain Joss Whedon Show

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.

"technically illegal"

[Speare]

'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.'

Many people seem to fall into this conceptual trap. Infringing on a patent (knowingly or unknowingly) is not illegal, but infringing on a patent without the consent of the patent-holder makes you liable. A patent isn't a law, but it provides the owner certain legal standing. There's a difference. If the patent holder doesn't tell you to stop using their method, then you're perfectly free to do so, and have no liability in doing so.

If using methods patented by others were illegal, then every company would have to stop, or be punished by the government. Microsoft couldn't develop something with a method published by IBM, and IBM likewise couldn't develop something "pioneered" by Microsoft. The interlocking illegality would seize up the development in big companies just as much as anyone else.

Many big companies hold huge patent portfolios for defensive purposes. They never complain about others using the methods they've patented, but they have a bargaining chip (or weapon) to use if someone else tries to collect on another method.

Many other companies like to hold patents without developing them, and to submit as many patent applications as possible, so they can try to collect when some rich but not threatening company stumbles across the same obvious methods. It's this phenomenon which creates the danger against which Bruce Perens is warning.

It's possible to keep patents, and to use them as the early founders of Patent Law intended: to promote the sciences by protecting their discoveries for a limited time.

Re:"technically illegal"

[pizza_milkshake]

The interlocking illegality would seize up the development in big companies just as much as anyone else.

you forget the Army of Lawyers factor. whoever has the most wins

Re:"technically illegal"

[dmeranda]

Maybe the term "illegal" needs further qualifiction. True, you may not be in breach of the Laws of the US Government (or other gov't). But as you said you are still liable. This has the same effect, that of doing something is okay as long as you don't get caught.

The problem with patents is that instead of the govenment defining the "law" and hence what's legal or not, that power is transfered to the patent holder. The patent holder now has the complete authority to define who and under what circumstances praticing their patent is "illegal" or not [okay, the courts do get veto power if you have enough money to pay for it, but by that point the "chilling" damage has been done]. And unlike the government, the patent holders can be completely unfair about it. IBM could say "only people with blue eyes may use our patent". And patent holders can change their mind any any point too (look no further than the MP3 mess, or the GIF/LZW fiasco).

So those who wish to practice patents are always left looking over their shoulders, knowing that they are in effect in breach of the patent and just hoping that they don't get caught or that the patent holder continues to not care. This is a kind of "illegality", if not technically part of the US legal definition. It's not much different than speeding, you just never know when you will be the unlucky one that gets pulled over.

So Patents in my opinion are NEVER just defensive. They are ALWAYS are offensive, if nothing more than just by imposing a potential threat of "being caught", or that suddenly the holder decides they don't like people with brown eyes.

Re:"technically illegal"

[iminplaya]

What...Nobody invented anything before patent law?? That is a myth. I absolutely believe that patent and copyright stifle innovation because of reasons you stated above. If the Wright Bros. had won their patent war against Glenn Curtiss we would still be warping the wing to roll the plane. The story has been discussed on slashdot before. That's just one of many examples. Sometimes I think patents were create by lawyers only to feed lawyers. They're the real beneficiaries(sp) of all this.

Re:"technically illegal"

[Cyno]

No, we're looking at a future where only the very largest companies will sue you because you're infringing on their patents and supposed copyrights, like SCO.

How long has SCO been damaging the credibility of Linux? How long before someone does something about it? How much does it cost that someone?

So you see, even without software patents, copyright law is vague enough to allow SCO to exist. With patents it will only get worse.

Re:"technically illegal"

[angulion]

It's possible to keep patents, and to use them as the early founders of Patent Law intended: to promote the sciences by protecting their discoveries for a limited time.

One problem (amongst others) I see with this, is the term "limited". In software 5 years is a *long* time let alone 20. I think there should be different timespans for different categories of patents at least, preferably no patents for math/software. Software would have adequate protection if patents would have a lifetime of 3-4 years.

Re:"technically illegal"

[Sri Lumpa]

Replace patent with copyright and contemplate the fallacy of your argument.

Violating a patent is as illegal as violating a copyright and neither need to be laws to make this illegal, they only need laws that violating them is illegal.

You seem to be confusing illegality with criminality, copyright and patent violations are tried in a civil court, by another company or another human prosecuting you (or you prosecuting them), and not in a criminal court, where the goverment would prosecute you.

What we are doing wrong....

[CajunArson]

OK.... Now I understand how bad patents can fubar software development for open source (and for closed source too) but there is something that nobody on Slashdot ever considers: Why not go out and get the patents done in a way that is open???
Despite what many people here think, patenting software does not make it closed source, in fact since a patent requires the disclosure of the best known means of implementation it can actually facilitate open code. Just because something is patented does not mean that it cannot be used in open source... it depends on who holds the patent and what licensing terms are.
If the Open Source community truly is innovating why not just patent the concepts and then place the patents in a licensing escrow: if you use the patent with a GPL license (or maybe LGPL/BSD/whatever open license you like) then the
patent is royalty free.... if you want to use it in a closed source program you could then charge royalties. After all, if closed source is about enforcing IP then they should put their money where their mouths are and pay, and this could even go to fund open source development!

I'm tired of seeing whining and helplessness on Slashdot when all you need to do is get up and proactively use the system in your favor. To all of you who will respond 'Only big evil companies can get patents' that is a bunch of nonsense, everyday people get them all the time and if enough interest was generated the FSF or another body could act as a clearinghouse to make it even easier to get patents put into the open domain by
software developers. It's about time we did something constructive about patents instead of just wailing about them.

Re:What we are doing wrong....

[Damn_Canuck]

I think part of the problem is, and please correct me if I am wrong, anyone can patent an idea. You do not have to have a final, working product in order to get the patent, you just have to have the ABILITY to make it happen.

So, if I were to come up with a new way to do function A, I do not have to implement it. Just the methodology is owned by me. Perhaps a variation in new patent applications for software and algorithms is in order?

It would be nice to put something in the open community there, but not everyone will follow it since right now they don't have to. But the parent's idea of charging for use of ideas only when you profit off of someone else's ideas, but free otherwise when using a GPL-like license, is a great one.

Re:What we are doing wrong....

[multipartmixed]

> I'm tired of seeing whining and helplessness on Slashdot when all you need to do
> is get up and proactively use the system in your favor.

I'll make you a deal.

Find 10 open source things worth patenting. PAY FOR THE PATENT.

Once you have arrange for 10 patent grants, I'll chip in one of my own.

I sure hope you make about $100,000/yr, you're gonna need most of it.

Re:What we are doing wrong....

[dpille]

Despite what many people here think, patenting software does not make it closed source, in fact since a patent requires the disclosure of the best known means of implementation it can actually facilitate open code.

I think a much better solution for keeping open code open would just be to publish the stuff. Certainly cheaper for those that are writing the code in the first place. Moreover, you might ask why, if there's a "best known means of implementation" better than existing published code, you would spend time and money getting it into a Patent-Office-acceptable form rather than just getting it written into a program.

Sure, the Patent Office doesn't search non-patent prior art, but that doesn't mean you wouldn't have a pretty short day in court saying, "see, this was published 5 years before they applied for this patent."

And as for executing a royalty-free license every time some GPL'ed software gets changed/redistributed, this is simply unfeasable, and I think in that context, you'd be hard pressed to collect from the closed-source guys, certainly not enough to cover the patent prosecution and maintenance costs.

Re:What we are doing wrong....

[Alsee]

It costs a few thousand dollars to obtain a patent and it costs an average of a half-million dollars to either enforce one or challenge one in court.

-

Depressing

[Space cowboy]

*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.

Re:Depressing

[jmt9581]

"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."

Politicans may bemoan the lack of interest in politics from the general public, but would they really trade all of the money they get from special interest groups for a more active public? I think not.

Re:Depressing

[Halo1]

Nevertheless, keep in mind that the majority of the members of the European Parliament did listen to the people. Thanks to the European Parliament, the current version of the directive is one we want to defend, instead of one which we have to fight.

PS: it's rapporteur :)

Patents can destroy innovation

[abertoll]

I really don't understand the move to make software copyrights or patents by the goverment longer lasting. It would seem to me that software actually has a shorter valuable life than other things, and therefore should be put into "public domain" sooner than other things. One of the points that SCO tried to make against Linux is that copyrights are supposed to be "for profit" so that they will encourage innovation... I think in software, innovation will best be served with shorter copyright durations and ... well, I think patents in software are almost all but pointless.

Well

[iminplaya]

Maybe, someday we're going to realize that the real purpose of patents, copyrights, etc. is not to promote new ideas, inventions, etc. after all. Just the opposite is true. Too many people think that if we didn't have patents, we would all feel better to suppress our ideas and remain in the stone age. Under the current system only greedy karma whores will be able to create anything at all. Some people just like to create for the hell of it(open source,anyone?) and they're usually the ones who create the best, because they're thinking only of their creation, not the money(greed) or attribution(karma whore) it will bring. If the caveman had invented patents before the discovery of fire or the invention of the wheel, We would be living in a pretty cold world, and all of our cars would always be on cinder blocks

Re:Who cares about Linux

[tomhudson]

You're trolling, which is okay - this is /. after all.

However, for those who might not know:

1. The $1 billion bucks has NOT been donated and never will be. It's a statement of an intention to give $1 billion in money and software at some future date.
2. how are donations of "crappy software off SourceForge" any different than "crappy software from Redmond"?
3. The article states that while other software isn't specifically excluded, they expect 90% of the software used on the computers to be Microsofts'.

This serves 3 purposes: tax deduction, p.r., product lockin. Nothing more.

Re:This won't spell the end to software developmen

[Mr Smidge]

limited to "the big boys" in countries that respect patents.

It is a bad idea to have laws that nobody can/will respect. This may encourage other easily-impressioned people to break the law in other areas. The laws are meant to be there to guide us into being good citizens, but when the legal way of doing things becomes ridiculous (prices of CDs, for instance), people don't seem too hesitant to look at and utilise illegal options.

Software patents should be abolished because of their dire consequences for innovation. They should not be kept and ignored, because eventually some greedy company might come along and try to boost its bottom line by litigating using software patents as its weapon of choice.

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.

Re:This problem will diminish over time

[Animats]

Yes. The Hayes "+++" patent on modem commands, the RSA patent, and the Lempel-Ziv compression patent (GIF files), have already expired. The new PTO rules are supposed to reduce "submarine" patents (it's 20 years from application, instead of 17 years from issue, now). It is getting better.

If the FSF had a few patents that could only be used in GPLd software, that would make things more interesting.

Re:This problem will diminish over time

[gcaseye6677]

I agree in principle that the length of software patents should be reduced from 20 years, but I see a lot of problems with unintended consequences. If we were actually able to get patent law changed to say that software can only be patented for 5 years, you can bet that anyone seeking a software patent will try to have it classified as non-software if at all possible. So you will see some very interesting definitions of software and many accompanying legal battles. Not only this, but once you have different lengths for different types of patents, someone will argue that certain types of patents should be valid LONGER than 20 years. This opens the door for permanent patents that basically don't expire. This entire issue is a very slippery slope and it may be best to concentrate on narrowing the scope of patents to eliminate the overly broad ones as opposed to limiting the time that they are valid.

Re:This problem will diminish over time

[mcbunny29]

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.

Sure patents may run out, but companies will just patent new stuff that's relevant at that time. And by the time the old patents expire, they'll probably be commercially useless anyway.

Make sure your voice is heard

[GillBates0]

Petition against software patents:

US:
http://www.petitiononline.com/pasp01/petition.html

Europe:
http://petition.eurolinux.org/
(This link is down right now, hope it gets back up fast).

Hopefully, if either the US or the EU see the light, the other and the rest of the world will follow suit.

IBM makes $1.5 Billion/year on patent licensing

[Bruce Perens]

IBM is shooting for $2B revenue per year from licensing and is heavily lobbying in Europe for software patenting. We can't count on their benevolence, or that of thousands of other companies.

We need to be asking our friends like IBM what they will do to help us. Our customers and users need to ask, as well. Many of them are IBM (and HP, etc.) customers too.

Bruce

Re:IBM makes $1.5 Billion/year on patent licensing

[Elektroschock]

So I hope Bruce Perens will come to the FFII conference in April in Brussels. We need your support. FFII will also be with one speaker at Fosdem 04. IBM is "lobbying", you'd better tell the story like this: The patent attorneys of IBM (like Fritz Teufel) are lobbying. It's a kind of hostile takeover by the patent lawyer industry.

Question for Linux guys...

[midifarm]

Please forgive my ignorance on this topic, but how hard would it be to port whatever flavor of Linux you like to the other camp of BSD? From the various articles I've read about SCO, it seems as if they're rapidly becoming microM$. Couldn't the entire Linux world just take some time, sit back and recompile themselves? It would not only stop SCO, it would be a revenge that I know many would like to be able to aim at M$.

I do reside in the BSD camp, being a Mac user, and am kind of looking in from the outside of the same house. What is all the hub bub? I'd like someone to shed some light upon the subject if they could.

Peace

Defensive patents

[JMZero]

Lots of software companies have lots of patents. Sometimes they're silly, but it sets up sort of a 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.

It's because of this setup that we normally only see big IP cases come from companies that don't actually produce anything (and thus have little to fear from a counter-attack) - like SCO.

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:Defensive patents

[Space cowboy]

"It's because of this setup that we normally only see big IP cases come from companies that don't actually produce anything (and thus have little to fear from a counter-attack) - like SCO."

You could also get a big IP case against someone without any patent portfolio, which is cause for concern within the OS (specifically Linux, but also Apache, Samba, etc.) arena.

People are currently relaxed because IBM has too much to lose if it rocked the boat for Linux - IBM's service-based business model would suffer heavy losses if Linux went down in flames.

We feel secure because we think we're needed. Mostly, I think that's right, but IBM was surprisingly nimble, and able to jump on the Linux bandwagon pretty fast. If another disruptive technology came along, we might find that Linux was surplus to requirements, and suddenly be rather vulnerable, as IBM tried to disrupt it's business competition by destroying Linux... It's not too likely in the near future, but it's possible...

Simon.

Re:Defensive patents

[John Courtland]

But it's the little guy who gets it in the rear, because to do anything, they either have to license technology that is very trivial, or just do it without licensing and run the risk of getting sued.

Re:Defensive patents

[bfields]

Lots of software companies have lots of patents. Sometimes they're silly, but it sets up sort of a 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.

And that's exactly why Perens says "We're looking at a future where only the very largest companies will be able to implement software", and not "we're looking at a future where noone will be able to implement software."

If only companies large enough to posess huge patent portfolios could safely release software, then something like the Linux kernel never would have gotten off the ground.

--Bruce Fields

Eternal vigilance the cost of freedom...

[gillbates]

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.

Re:Eternal vigilance the cost of freedom...

[FreshFunk510]

Well, yeah, the big issue as of late is how much America is becoming a litigous country and how it's affecting all of society. Doctors are wary of patients who will sue of malpractice, cops are wary of serving the public for being sued, etc etc.

It's quite sad how a nation that was built on laws is being exploited by the very means that give it legitimacy.

Re:Eternal vigilance the cost of freedom...

[Togakure]

I don't know what it is like for the average person in America and I believe that generally they'd be like the people in New Zealand: generally decent people. But from outside it does appear that Americans have become very defensive, litigious and downright protective of their individual rights to do what they please while doing to others before it is done to them. One only needs look at the publicity that American corporations, celebrities and government garner internationally for what they do and have done (Enron, SCO, tabloid exploits, Bill Clinton's sense of honesty truth justice and where the belt should be in a boxing match, (any country's) politicians, CIA, RIAA, Iraq aka where's-my-oil...) anyone? /.ers generally excepted, of course :)

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

[imadork]

(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).

Excellent. I think I need to come up with a shorter version of that to turn into my new sig!

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]

Excellent. I think I need to come up with a shorter version of that to turn into my new sig!

*smile* Fine, so long as you realize that it's my intellectual property.

-- MarkusQ

P.S. For a while (1999?) my sig was "Intellectual Property is neither."

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:CS is math

[Paradise Pete]

Software is like sex; if you feel the need to pay for it you can always find someone willing to take your money.

Sure, but to have it reliably without paying for it, you still have to know what you're doing.

Re:CS is math

[mcrbids]

No, the biggest problem is that software (or any mathematics for that matter) should not be patentable.

I think it's time to spend some karma here, as I'm most assuredly going to lose some for saying this, but...

The idea of a patent is to benefit those that invent things, on the notion that inventing things in general is a good idea.

A patent is never completely new. All ideas come from other ideas. Taking an existing idea and improving on it can easily result in a patentable item.

Patents are issued quite legitimately for all kinds of incremental ideas. For example, I have a patented Snap-on ratchet screwdriver. I looked up the patent one time, just for kicks. The actual latch mechanism inside the screwdriver is what's patented. If you are interested, you can look it up yourself.

Notice that it references some 20 other patents, one dating back to 1883! Ratchet screwdrivers are nothing new - but there's still plenty of patentable ideas around ratchet screwdrivers.

Now, with a patent, you have an idea that results in a machine that does something. How is software really any different?

You can't get a patent on software itself. You can only get a patent on the resulting combination of a computer and the software, which, as a unified piece, is an operating machine that is capable of performing a real activity or service.

You are not be able to patent a specific instance of software - that's protected by copyright law. (which IMHO is easily more messed up than patents are with their 100+ year extensions)

You can't patent an algorithm, unless that algorithm is part of a demonstrable machine that produces an identifiable result.

Granted, software can be represented as a set of numbers, but then, too, so can a design for the tractor hitch!

Where is the problem?

Re:CS is math

[Paradise Pete]

Excellent. I think I need to come up with a shorter version of that to turn into my new sig!

"fudge" - MarkusQ

Re:CS is math

[MarkusQ]

The idea of a patent is to benefit those that invent things, on the notion that inventing things in general is a good idea.

Wrong. The idea of a patent is to reward people who do something novel for telling the rest of us how they did it. That is why you are (or at least should be) required to provide a working model and detailed explanation of the invention you want to patent.

But under what circumstances should we the people agree to pay such a reward? Obviously, it is only in the public interest to give a patent when the likelyhood of us independently figuring out how to do the trick in question is low compared to the cost of granting the patent. Thus the requirement that the invention be "non-obvious."

You can't patent an algorithm, unless that algorithm is part of a demonstrable machine that produces an identifiable result.

But that isn't what is happening. Patents are being issued on algorithms without tying them to a paticular piece of hardware. People aren't getting patents on programs they are being granted patents on algorithms and formats and other abstract ideas that are clearly and explicitly excluded from the Patent Act.

This is not in the public interest.

-- MarkusQ

Re:CS is math

[mcrbids]

>You can't patent an algorithm, unless that
> algorithm is part of a demonstrable machine
>that produces an identifiable result.

But that isn't what is happening. Patents are being issued on algorithms without tying them to a paticular piece of hardware. People aren't getting patents on programs they are being granted patents on algorithms and formats and other abstract ideas that are clearly and explicitly excluded from the Patent Act.

Can you give a single example?

One? (provide me a link)

Re:CS is math

[AhBeeDoi]

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's fine that laws of nature and natural phenomena are not patentable but people have easily skirted that issue. Patents have been granted on the use of specific human genetic sequences, often with the patent holder not understanding what the sequence actually does. While the gene sequence itself cannot be patented (or else we'd all be getting an invoice for license fees from the owner of said protected IP), the use of the genetic sequence in any process or invention is protected.

We've come a long way from Jonas Salk, and frankly, we need to go back.

Re:CS is math

[MarkusQ]

Can you give a single example?

One? (provide me a link) Sure. Without even leaving Slashdot

Let's see what that gets us. Hmm. Microsoft patenting XML for storing text, sombody sueing the DNS registrars for their (patented) use of URLs, Eolas sueing MS for using pluggins (which they claim to have patented), Intertrusts DRM patents, ...gosh I'm sorry, I forgot. You only asked for one. I won't bother citing the rest of the page.

-- MarkusQ

Re:CS is math

[MarkusQ]

We've come a long way from Jonas Salk, and frankly, we need to go back.

I wholeheartedly agree.

-- MarkusQ

Re:CS is math

[bokmann]

I have just applied for a patent on the first 10 million digit prime number. Much like SCO, I'm not going to tell you the number (but I can tell you the process by which I discovered it).

When the Gimps Project finds it, I am going to sue them for the $100,000 prize they will collect.

At that time, I will announce the 10 million digit number as 'exhibit A' in my lawsuit.

I like the idea of patenting math.

Re:CS is math

[mcrbids]

Well, as I write this, there are two responses, neither of which actually provide a link to an actual patent. In case you haven't followed the thread, I said the following:

You can't get a patent on software itself. You can only get a patent on the resulting combination of a computer and the software, which, as a unified piece, is an operating machine that is capable of performing a real activity or service.

Instead, we either have a few lame, secondhand press articles, or worse, thirdhand slashdot postings, and we all know how amazingly accurate /. postings are.

If you've ever worked with press (I have, a little) you'd know how amazingly inaccurate any press actually is. Every reporter I ever saw didn't really care - they get a snippet or two, write a story, and they're done.

So, I asked for a patent on software, so show me one! I'd be perfectly happy with just a patent number!

The patent must be for software, and not for the resulting machine. Does even one single example exist?

(BTW, You can see my original post here)

Re:CS is math

[Shimmer]

You are obviously not a programmer. Software is built on math, but it is not math itself.

Using physics instead of math, would you also say that a light bulb (which is nothing but a collection of naturally occurring atoms), should also not be patentable?

Re:CS is math

[arkanes]

I'll refer you to the eolas patent. I'm not going to look up the number because I've read it myself and you can do the research if you want. The eolas patent is, specifically, on using mime types passed from a web server to choose which a helper plugin to run, and then to run that plugin, automatically, with the browser frame.

The patent, of course, requires the infrastructure of computing to be in place - hardware to run on (although the hardware required is not specified), a network, a server on the other end, etc. These elements are NOT defined with any detail. There are no implementation details in the patent whatsoever - it's a patent on the PROCESS of embedding plugings.

Now, as anyone who's ever written an app thats extendable by plugins knows, figuring out what plugin to run is pretty trivial. The hard part is things like defining an interface specification and all the other plumbing that lets third party code interface seamlessly with yours. None of this is present in the eolas patent.

Once upon a time, you could only patent actual inventions. In the 70s they expanded that to include abstracts like genomes, algorithms, and buisness processes.

Re:CS is math

[MarkusQ]

You are obviously not a programmer. Software is built on math, but it is not math itself.

Actually, I am a programmer; I'm just not a newly minted one. When I started programing computer science was (correctly, as I still maintain) part of the math department at any university that taught it. This was roughly the same era that folks like RMS developed their sensibilities (which I tend to share).

As for your second point, software isn't "built on" math any more than numbers or geometric forms are. But it shares the property of yielding to the same form of analysis as any other mathematical entity and thus is as reasonably considered a part of matematics.

To put a finer point on it:

• It is possible to draw a triangle without knowing any matematics, or at least without realizing that you are using mathematics.
• It is possible to write a computer program without knowing any matematics, or at least without realizing that you are using mathematics.
• In neither case would it be to society's benefit to let the practitioner's ignorace decide the issue. You should not be able to patent software for exactly the same reason you should not be able to patent a triangle.

-- MarkusQ

Re:CS is math

[Shimmer]

You have failed to address my point. I maintain that software is to math as engineering is to physics. Thus, your claim "Software cannot be patented because triangles cannot be patened" is analogous to the claim that "Light bulbs cannot be patented because electromagnetic radiation cannot be patented".

Both claims are absurd.

BTW, I am also an old programmer. Where I come from, CS was originally part of the Applied Math department, not the (pure) Math department. Again, Applied Math is to Math as Engineering is to Physics. So Math and Physics are not patentable, but Applied Math and Engineering are. You see the difference?

Re:CS is math

[Dun Malg]

So, I asked for a patent on software, so show me one! I'd be perfectly happy with just a patent number!

The patent must be for software, and not for the resulting machine. Does even one single example exist?

RSA public key cryptosystem. U.S. patent #4,405,829, issued 20 Sep 1983. Happy now?

Re:CS is math

[mcrbids]

But this is NOT A PATENT FOR SOFTWARE. It's a patent for an "encoding apparatus".

Reference the following text:

"Each encoding device is an apparatus which accepts two inputs: a message-to-be-encoded, M, and an encoding key or operator, E. Each encoding device transforms the message M in accordance with the encryption operator to produce an encoded version C of the message (which is denoted as the ciphertext) where C=E(M). The encoding key and the ciphertext are also digital sequences.

Each decoding device is an apparatus which accepts two inputs: a ciphertext-to-be-decoded C and a decoding key or operator, D. Each decoding device transforms the ciphertext in accordance with the decryption operator to produce a decoded version M' of the ciphertext where M'=D(C), or M'=D(E(M)). Like the encoding key, the decoding key and decoded message M' are also digital sequences. The encoding and decoding keys are selected so that M'=M for all messages M.

It is not a patent for software - it's a patent for the software, combined with hardware, to create an information encoding apparatus.

How is that different than a design combined with steel to make a tractor hitch?

Where is this wrong?

Re:CS is math

[fucksl4shd0t]

*sigh* That's not the problem with software patents.

A patent is supposed to be "give us your designs and we'll give you a temporary monopoly. We can use your designs for non-commercial uses, such as research and experimentation. You can sue the ass out of anybody who builds your device commercially"

So, in that light, shouldn't you have to provide your source code to get the patent?

Contrarily, if you don't want to have your patent expire, you can opt to keep your designs a secret instead. THen you have some limited recourse under trade secret law if your design leaks, but no monopoly, and no other protections.

With software, you can do both! Patent the thing, and keep the design under lock and key. You can also copyright the design itself! Whoopeee!

That's the problem

Re:CS is math

[runen]

So fish shouldn't be patentable, but a fish casserole should.. :)

Re:CS is math

[Shimmer]

Bingo.

Re:CS is math

[MarkusQ]

fish shouldn't be patentable, but a fish casserole should

Well, you're out of luck then, since (at least so far) neither or them are patentable. And I (and the rest of societhy) are in luck, since we can enjoy either without having to ask permission from people like you who think they ought to be able to patent them.

-- MarkusQ

Re:CS is math

[Halo1]

I maintain that software is to math as engineering is to physics.

I think it's more correct to say that software is to maths as stories are to spelling/grammar. That's why computer programs are protected by copyright instead of by patents. After all, you write/publish a computer program, unlike a light bulb.

Afaik, all other fields protected by patents directly relate to physics/chemistry/... (i.e., physical processes).

Re:CS is math

[ScrewMaster]

Amazon 1-Click Shopping.

Re:CS is math

[ScrewMaster]

"Hobbiest"? WTF? Is it "hobbier" than the others? It's spelled "Hobbyist"

And here I thought I was the only one irritated by that. Interger is another of my favorites.

Re:CS is math

[ScrewMaster]

No, the BIGGEST problem lies in the ethics of those applying for patents. The patent system as it currently stands is flawed, to be sure, thanks to decades of Congressional malfeasance. But that isn't the only problem, nor even the greatest one. In the modern, cutthroat business environment, the expedient view generally prevails: don't worry about the right or wrong of it, just worry about whether we can a. make money or b. stop competitors from making money. Those individuals running our corporate world see nothing wrong with gaining any advantage over the competition, even if it is of dubious legal or ethical origins. And the problem is getting worse: as more companies begin to engage in this brain-damaged behavior those that try to remain honest are at a significant disadvantage.

It is also a mis-use of the system to patent something that is obvious and well-established in a given field (plug-in launching, say) with the express purpose of later using that award to extort money. For that's what that is: extortion, not the legitimate protection of an invention. That wasn't what the Founding Fathers intended and I'd like to believe it isn't what Congress intended.

The fact remains that the choice to abuse some aspect of our legal system is made by those that abuse it. If you KNOW that your invention (and I use the term loosely in many cases) is covered by massive quantities of prior art and/or prior patents, is fundamentally invalid from the get-go, and you choose to apply for patent protection anyway you, not the patent system, not the USPTO, are at fault. Put the real blame for this fiasco where it lies, in the hands of those would misuse the system for extortion and the illegal suppression of legitimate competition.

Re:CS is math

[BandwidthHog]

Fuck 'em all, let's just patent mathematicians and be done with it!

Re:CS is math

[Anonymous Coward]

Interesting distinction, but this doesn't help me to clarify the 'validity' of patents.

Suppose we allow any novelty patentable under Hershian rules, since any contruct or concept is merely an expression based upon arbitary axioms.

You then have to accept the following defence...

No Judge... although the two algorithms in dispute behave in exactly the same way, for the same set of inputs, outputs, time and space usage, and compile to exactly the same sequence of low level opcodes they were in fact constructed under different systems of mathematics (and Godel can supply us with an infinite set of equally consistent well formed 'mathemati', each equally flawed).

The fact is the Platonists are RIGHT in a fundamentally commonsense way. Unless you take a lot of drugs there IS a common objective reality and it IS described by the same common set of mathematical tools and symbols we all agree on.
Things went out the window in Maths after Mr Bertrand Russel started with his set nonsense.

Since fundamental ideas exist a priori and independently of human observation no aspect of them can be patented and attibuted to human creativity or reason.

Now I know this sounds slightly religious, but I'm sure many great creative minds, even the ones who were practical Atheists would agree that when you
hit on something good you feel it comes from outside your cognition and you feel humbled at being given a tiny peek at the universe.

Software concepts are no more patentable than the stars. It amuses me to see humans puff themselves up with such self importance as to seriously believe they can 'own' any abstract construct at all. But then that's corporation people for you, small minded little men with big ideas.

Re:CS is math

[Blublu]

"Patents have been granted on the use of specific human genetic sequences" Does this mean it's possible to patent specific persons? Quick, someone patent Darl McBride!

Re:CS is math

[LionKuntz]

A patent is never completely new. All ideas come from other ideas. Taking an existing idea and improving on it can easily result in a patentable item.

Patent apps must pass three test. Failure of any one of the tests invalidates the patent application.

(1) The invention must be NEW, that is, not already in use anywhere in the world,

(2) The invention must be NOVEL, that is, not just a paintjob on something else which itself is unpatentable.

(3) The invention must be UNEXPECTED, that is, not mere incremental on prior art as known to the experts in that field. It must be 'surprising" in its application of known elements of prior art.

Failure to meet even one of these tests dooms a patent application.

Re:CS is math

[Dun Malg]

But this is NOT A PATENT FOR SOFTWARE. It's a patent for an "encoding apparatus". It is not a patent for software - it's a patent for the software, combined with hardware, to create an information encoding apparatus.

It is a software patent, as the hardware is never specified. Software, by definition, runs on some sort of hardware. Software is a set of instructions for performing a task on a computer. You tell me where the RSA patent either A) specifies any particular physical device these instructions are to be run on, or B) which of their methods is not part of a set of instructions for performing public key encryption on a computing device. It's a freakin' mathematical formula, not a steam engine. It's SOFTWARE.

How is that different than a design combined with steel to make a tractor hitch?

I'm not sure what point you're trying to make with this analogy. Steel is just a construction material. Construction materials aren't relevant to patents, even for tractor hitches. If anything, steel is equivalent to the hardware of the RSA patent. It doesn't matter whether a hitch is made of steel or titanium as far a a patent is concerned; likewise, it doesn't matter on what hardware you run the RSA public key algorithm-- you'd be violating their patent because of the software. Where is this wrong?

Perens too good for Slashdot?

[gosand]

Is Bruce Perens too good for Slashdot, or did the editors drop the ball on the questions? Whatever happened to the Ask Bruce Perens interview? That was back in late July, 2003. Anyone? Beuller? Beuller?

Re:Perens too good for Slashdot?

[Amyloid]

Slashdot shows its inadequacy sometimes...

Re:Perens too good for Slashdot?

[happyfrogcow]

the opposite rather. he's too busy reading and posting to slashdot that he doesn't have time to post to slashdot... if that makes sense.

Eliminate Patents Period

[Anonymous Coward]

Patents have now become more of a hindance to innovation than an incentive. Whenever any form of government becomes destructive to these ends, it is up to the people to alter or abolish it.

more dangerous than people think

[pizza_milkshake]

IBM is pretty benevolent with their patents, and they're much better than small companies with the goal of "get a vague, broad patent on something that already exists and then make our money suing people". but the point is that there is a direct correlation between for vague, overbroad, frivolous patents and vague, overbroad, frivolous lawsuits.

the patent office needs a specialized branch for comp.sci-related patents

Injunction

[nuggz]

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.

In the jurisdiction where the injunction is valid.
If an injuction was granted in the US, it would definately hurt US companies, the rest of the would could pretty much continue.

The second issue is that if granting an injunction would do more harm then not, the court should either not grant the injunction, or take steps to minimize the effect.

Re:Who cares about Linux

[jdifool]

I can't resist the temptation, sorry....

Maybe you should read between the lines, instead of focusing on the headlines. When Microsoft gives $1 billion of computer aid to the United Nations, in both cash AND software, don't you think this is a good investment, both for commercial and public image purposes ?

The main reason to give such a large amount of money is that the United Nations will not change their OS, because it will have been provided, and because the very proper ways of using it will have been taught for free by Microsoft experts.

Furthermore, it will make Microsoft a good contributor to the probably most useless NGO (unfortunately, I'd say). And what does Microsoft can look for now that it is wrongly aknowledged by 98% of the world population that Windows is the Os to have ? Public image.

This is called an investment, not a donation.
Use you head.

Regards,
jdif

That game shouldn't work...

[Thud457]

FSF should reply as such:

1. $1e9 / $199 = 50,000,000 OS licenses for XP Pro
2. We'll donate 100,000,000 copies of our OS!

Re:That game shouldn't work...

[tomhudson]

Maybe someone should tell the UN about this or this ... seems that Microsofts' "charitable donations" are just too expensive to accept.

Re:That game shouldn't work...

[dyte]

I would take their generous offer

BTW - $1B / $199 ~ 5M (not 50M)

Re:Patents and the immorality of open source softw

[blackp]

Reading this post kept me laughing, until I suddenly realized this guy is serious!

Well, let me have a little fun here. Following the same logic...
- We should stop building road, since they might be used to kill people in an accident, or facilitate the escape of bank robbers
- We should stop building buildings, since they might burn down and hurt people.
- We should stop making steel, since steel can be made into knives, and guns. And the bad people can use knives and guns to kill people quicker than with their own hands.

The one major point that was not mentioned is that these open source projects also provide tremendous resources to the 'Good' people in the repressive regimes. They can use apache and MySQL just as easily as the 'Bad' buys, and in most cases have much less funding that the 'Bad' people. I believe Open Source helps the underdog level the playing field. The Chinese government would have the means to buy IIS or iPlanet if Apache were gone, but the Chinese underground would not be so fortunate.
-

patent patents

[pizza_milkshake]

then sue the Patent Office for infringement

Loophole never tried?

[Tablizer]

One is not allowed to patent mathematical formulas. It is part of the original patent law. So, what is the difference between computer code and formulas? Not much, but generally it is the declarative nature of math formulas that appears to separate them in the mind of judges. So, perhaps if one writes key parts of programs in declarative languages, like Prolog, then they would be covered as a math formula. Even if it does not work, it would make a fascinating case to see lawyers and judges haggle over the difference between Prolog and math.

Re:Loophole never tried?

[FreshFunk510]

Interesting. So one is not allowed to patent mathematical formules but what about algorithms? They are similar but there must be some distinction. And if algorithms can't be patented then what about methods of technology that use these algorithms? (one more level up).

I'm sure the line is drawn somewhere in the law.

Re:Loophole never tried?

[kenjib]

Similarly, from what I understand you can't patent cooking/baking recipes, rules for games, or sewing patterns. I would love to see a court case contest the grounds for all software patents in general.

Re:Loophole never tried?

[Halo1]

In the European pro-swpat camp, the reasoning is that a computer executing a computer program is no longer a computer program as such and thus patentable, at least if the computer program allows you to make more efficient use of the computer than without it (or with other known programs). It's really stupid of course... What else can you do with a computer program than run it on a computer? Use it as wall paper?

Re:Loophole never tried?

[Halo1]

In case of "methods of technology that use these algorithms", you do not get a patent on the algorithm that is implemented in the technical apparatus, but on the way you implemented it technically. In software, you get copyright protection for the way you implement an algorithm (because it's more like writing a story based on an idea, than on constructing a valve based on some physical properties of the materials it's made of).

Software patents however, give you patent protection for an algorithm, which is a mixture (from hell) of both principles. As such, they lead to enormously broad (you get exclusive usage of some principle) and conflicting (copyright grants me the right to publish my program, but a patent owner forbids it because it uses a patented technique) protections.

MOD PARENT DOWN! IMPERSONATION!

[Anonymous Coward]

MOD PARENT DOWN!! IMPERSONATION!!

Look at his 'name' closely. It's spelled RAYRNOND.

See the FAQ

It's all about prior art.

[Anonymous Coward]

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.

the problem

[Anonymous Coward]

what you describe continuing is entirely dependent on everyone playing nice. all it takes to go from today's world to the dystopia perens imagines is for people to begin enforcing their patents on a large scale. a defensive patent can just as easily be used offensively. the patent shields that the big players currently have to ensure mutually assured destruction in case of patent enforcement can turn into patent fences to keep anyone not in the mutual-assured-destruction club out of the industry, and all it would take is for those big players to start treating them that way.

you can say "oh, they'll never do that." great. you are betting the entire future of software development on the continued goodwill of profit-oriented companies. the point is they can and human nature therefore implies at some point they will. this is the hypothetical future that perens is envisioning and it will come whenever the big software companies decide they want it to.

it hasn't yet, and maybe it never will. but whether it comes or not is totally out of our control. isn't that a little bit unsettling?

the shift key on this laptop is broken. sorry about that.

Re:This won't spell the end to software developmen

[iminplaya]

Let's just hope that the Americans don't start using their military to enforce patents worldwide. If they think it's profitable enough, they will. Right now they are just using the IMF, WTO, World Bank, etc. to do their dirty work for them.

Re:This won't spell the end to software developmen

[Tin Foil Hat]

Well. That's very comforting.

Except that I live in Texas. I do not want to move to Brazil.

Eh??

[EXTomar]

Maybe I don't understand what your question is about "port whatever flavor of Linux you like to the other camp of BSD" but why? Just to change licenses? The BSD doesn't solve any more issues than GPL when it comes to SCO like behavior. A company can come along and claim that parts of their proprietary software was stolen and place in the FreeBSD core. You'd see all of the same complaints and shouting from the BSD camps wanting to know the exact parts of the offending code and deeply offended about draging everything into the courts.

Recompiling changes nothing. Switching license changes nothing. SCO's complaints are just as weak with either system. In fact isn't SCO flirting with the idea of trying to sue some BSD groups? The BSD teams are in general very supportive of the fight against SCO. Even though philosophies may be different they do regonize how much SCO BS is floating around.

Re:Eh??

[Tin Foil Hat]

Yet Darl has indicated that BSD will be next on the hit list. I don't think he specified which flavor, which probably means all of them.

Re:Eh??

[EXTomar]

So? FreeBSD isn't any more or less vulnerable to erronious claims like SCO leveled at Linux.

An SCO come-lately company can say "We wrote some software, never released the source code to the public yet it somehow got into the BSD core. We demand royalties from anyone who makes money from BSD!!" BSD doesn't give a license to take any code you want, especially code you don't own, to stick into BSD. Neither does GPL. That is a copyright violation which neither license will support.

What SCO is doing has little to do with Linux or the GPL and everything to do with rats trying to weesle money out of companies while draging Open Source through the mud. SCO couldn't create software to compete against Linux or BSD so its suing profitable companies like IBM in an attempt to save themselves. The GPL or BSD offer no more or less protection against these unbased crazy claims.

Re:This won't spell the end to software developmen

[sfjoe]

It is a bad idea to have laws that nobody can/will respect.

There is an entire political party devoted to passing laws that nobody will respect. Believe me, it will get worse, maybe much worse, before it gets any better.

Mod Parent Up Please

[SWroclawski]

A number of us were waiting for the answers and haven't gotten them.

Please mod the parent up so there's more visibility on the issue.

- Serge

Patents

[nuggz]

A patent is a government sponsored monopoly for the inventor.
The value to the inventor is their monopoly control of that technology.

Imagine that with a simple request to a competitor you could shut them down, and become a monopoly in that field. That is the power a patent.

The defensive strategy is just blackmail, if you shut us down, we'll shut you down too. Because they know they're probaly sitting one something of someone else, but they know you won't do anything because of their counterattack.

Note in the SCO case, IBM launched a patent offensive. I think this strongly suggests you may never want to fight IBM on ANYTHING, even if you're right, they'll still squash you with their other weapons.

Re:This won't spell the end to software developmen

[kfg]

And we've had the shoe on the other foot already as well. While the Wrights and Curtis spent their time in the courts, Europe simply ignored the Wrights patents and went on to development.

Hence, although America invented the aeroplane in 1903, by the time we entered WW1 only a decade and a half later we were put in the position of having to not only buy planes from France but license designs of trainers from England. Even engines had to be purchased and licensed from outfits like Bugatti and Hispano-Suiza in Europe.

Patents were intended to strike a balance between granting rights to the inventor while still allowing technological development, not to allow a single individual/company to hold the universe for ransom or remain technically moribund.

The system is broken. Everyone seems to know it except the USPTO.

KFG

In progress with machines...

[DevVar8]

It's already a growing trend with electronics. There is a growing issue with true hobbyists, do-it-yourselves, and thieves.

I know that tinkering with commercial products can get in serious trouble.

Basically suppressing your curiosity by threatening lawsuit.

Patents Protect Google...

[PHPgawd]

...and other "small" companies from folks like Microsoft. Patents may the be the only thing that will stop them from "Netscaping" Google.

Don't be overbroad

[FuzzyDaddy]

"Patents promate innovation" is a lie

Let's not be overbroad. Clearly, there is a huge threat of software patents stifling innovation. But when it comes to real hardware, our company would not be funded if we didn't have patent protection on our products.

The irony is that patents were supposed to protect the little guy from exploitation. In the case of software patents, it cuts the wrong way.

Re:Don't be overbroad

[iminplaya]

"The irony is that patents were supposed to protect the little guy from exploitation."

That the way it's stated in the law, I don't blieve for a second that was the real intention. If there were no patents your company would simply be doing someting else. We would all find other ways to make money. Or maybe we would become truly human and just give.

Re: Number 1 reason against software patents

[Aidtopia]

Copyright is the right way to protect software, not patents.

Copyright does not protect inventions, merely expressions of inventions.

My brother is co-inventor on several patents for signal processing algorithms. These are true inventions. They make it possible to give an anethesiolgist very accurate data in real time. It also makes the device safe to use on premature babies. It took years (and therefore lots of money) to develop these algorithms.

Copyright does not protect the algorithms. Only patents do. Of course, these algorithms happen to be implemented as software running on a DSP.

The only way these efforts could have been funded (in our capitalist economy) is by the potential to make money off the results. Being a small company, they make money by licensing their technologies to the manufacturers. FDA approval requires disclosure of the algorithms and imlementation. Without patent protection, the manufacturers could re-implement the algorithms (on a different processor or in a different language to avoid copyright problems).

I'm not saying that software patents are a great thing. There are a lot of problems with the system. I'm just pointing out that the parent comment really shouldn't be modded as "insightful," when it misses the key distinction between copyright and patent protection and therefore concludes that we only need copyright.

If you keep the penny,

[BillsPetMonkey]

.. you can't have the currant bun.

This is what companies have to realise about software patents.

Check an EULA or a shrink-wrap license and the gist of it is that you have no recourse to anyone if the software fails or deletes all your data. You buy the software "as is". But if you want people to pay for software, there has to be some sort of recourse - you can't just expect people to pay money and get shoddy software and just move along quietly (and not derive their own solution to the problem), while the company gets to ringfence it's IP (which was probably derived from a cross-patent anyway). It's just not on.

And yet that's exactly what we've been getting. By just building a GUI widget on many platforms you are already liable to historic patents. And more importantly - you are not allowed to claim it "unfit for purpose" or even fix it!!!

I really think the message should be clear to software companies that want to enforce patents on software (sorry for the caps) -

IF YOU WANT TO PATENT YOUR STUFF, TAKE RESPONSIBILITY FOR IT FIRST!

Grrr. I think I need a nice cuppa tea to calm me down.

No, not open office.

[Bill, Shooter of Bul]

Open office isn't technicly "sold" to anyone. Star office on the other had is distributed by Sun. A nice, large target that is already despised by Redmond. But, Microsoft claims that it only patents things defensively. So it would never sue anyone else for patent infringment. At least not until their sales start to tank.

Big Picture

[hamsterboy]

There's a fundamental problem with IP law. Copyright was invented to protect things that are written; patents were invented to protect things that are material. In the 18th century, a wrench couldn't be copyrighted (because it wasn't written), and a song couldn't be patented (because it didn't have a physical form).

Unfortunately, we're at a point where that's no longer a real distinction. The Linux kernel is both a functional tool and a work of literature. It's just text, but it does something. That's not something that IP law is equipped to deal with.

With apologies to Neal Stephenson, how would IP law deal with a nam-shub? A sequence of syllables that acts like a program in the human brain. What if I write one that cures cancer? Do I patent it, copyright it, or both? What's the proper way to protect things like this?

-- Hamster

Re:This won't spell the end to software developmen

[Short Circuit]

No kidding.

My step dad used to work for an electronics design/manufacturing company. They built a factory in China, but the Chinese government demanded a copy of every piece of documentation that would be onsite. Then they built a duplicate operation just down the road.

patently riddiculous

[jimmi_bob]

its a shame that the first thing that these big companies do when they make a minor discovery is to patent it. its also infecting academia too, read a paper in a top journal or conference and most likely the author has already got his lawyer on the case six months previously. of course people should benefit from discovery but now it seems that exploiting your own work is at the expense of preventing others from adding to it (without paying a hefty royalty fee). its particularly disturbing when applied to software, human genes (which surely we all own), and business prctices ... none of which i think should allow patents. software is automatically copyrighted, and that should give some degree of protection to the original author. if a patent had been taken out we could all be talking about xerox computers on slashdot ... that is a scary thought :)

Patents Are Not a Problem...

[zungu]

Patents are not that big a problem. I mean there are patents in Electronics world since the time electricity was invented. Has this stiffled innovation in the electronics arena? Has this stopped a hobbyist from building the latest circuit? Eventually, what is popular also gets cheap. Same will happen in software. First thing to remember is that software patents are hard to defend in the court. Look at the SBC Prodigy-BT case about a wild patent covering all forms of hyperlinking. The Judge threw out the case in few days. On the other hand patents provide useful information in public domain very early. Almost all patents applications are now published in 18 months. So if IBM invented a new algorithm to convert Linux application into Windows application and if they applied for a patent then the technique would be out to public after just 18 months. Imagine an army of developer trying to better this invention or designing something in parallel to it. Who cares if IBM gets rights over the original idea for 17 years? Patents are another kind of open-source/public domain concept. I have never understood why the open-source community opposes patents.

Re:Patents Are Not a Problem...

[zungu]

...Thanks for correcting that 17 year thing :-) The new cheap method for challenging a patent is already a law. It is called inter-parter re-examination. In the sense that you can ask the USPTO to re-examine the patent, where you can submit prior art to them, and the patent filer can be the opposite party. This proceeding is in the patent office and it is more or less between the patent applicant and the USPTO, where the challenger supplies the prior art. Unlike litigation where discovery and trial consumes most money, this is a cheap and effective way to challenge a patent. Of course there are safegaurds to protect against frivolous challenges. My point was that that patents are allowed in almost all technical areas so why not for software? There is a long-term benefit in compliation of software patent literature just as it is for other technical fields. Broadness of initial patents is just a passing phase and open-source fanatics are damaging the overall purpose of software patents which is to develop a repository of knowledge which would otherwise be locked up in the vaults of giant corporations.

Re:Patents Are Not a Problem...

[Halo1]

My point was that that patents are allowed in almost all technical areas so why not for software?

Because software is different. Software is just a bunch of logical/mathematical constructs in a language a computer can understand. It's maths. As an example of how this is different from traditional technological fields, let's take a very simple physical universe: that of Lego bricks.

If you place one Lego brick on the ground, it will just sit there. Put one or two on top, and you'll still have no problem. If you put 100 Lego bricks right on top of each other, you get a very unstable structure. So even in this very simple physical environment, things that behave one way in the small, may behave quite differently when used in a more complex whole.

With software, this is not the case. One small, sound logical reasoning remains just as valid in a larger whole. Software development by its very nature consists entirely of combining all kinds of small logical constructs into a, non-obvious or not, bigger whole. And software is being innovated every day, because if you don't innovate, your competition will and you will lose whatever edge you had.

Please read this study, carried out by the Max Planck Institute and the Fraunhofer institute (by no means anti-swpat establishments) for more on why software is different and how software development works differently. For a more philosophical approach, in case you want to understand why those empirical results are what they are, see this page.

Broadness of initial patents is just a passing phase and open-source fanatics are damaging the overall purpose of software patents which is to develop a repository of knowledge

But software patents don't work that way, as shown by the recent FTC study (link is to a summary of all swpat related stuff, link to the full study is available at the top for you to verify, should you think that the person who created that page misrepresented the facts).

Some quotes:

• One panelist stated that "the [patent] system discourages you from looking very hard [at patent disclosures] because ... simply by virtue of poking around to find out what patents exist you expose yourself to willfulness claims which can triple the amount of damages and exposure to attorney's fees."
• The panelist summed up the problem with the statement "there's too much information and it is no longer meaningful."

Computer scientists do not go to patent databases to look up information on how to do something.

which would otherwise be locked up in the vaults of giant corporations.

I guess that's why these same giant corporations are arguing that they need software patents, because it's supposedly so easy to reverse engineer and reimplement their precious techniques. They just want it all: very strong protection for abstract things which do not require such guarantees in order for them to be made public.

How come? Because you publish software, you don't manufacture it (just like you don't publish an industrial valve or a chemical reaction, you manufacture or conduct those). Publishing by definition is "making public". It's the same with business methods: either you use a business method and it automatically becomes public, or you don't use it.

Software patents are a giant corporation's wet dream, because they pretty much only benefit the patent holders.

Re:Patents Are Not a Problem...

[Alsee]

technical areas so why not for software?

You must not be a programmer.

Multiplication, division, geometry, and calculus are technical areas. Do you think we should permit patents on math? Because that really is what you are advocating. A program REALLY IS math, nothing but math.

A computer is a patentable machine. A program is copyrightable peice of writing. You can print any peice of software as a book. Are you suggesting the words in a book should be patentable?

A musical instument is a patentable object. A peice of sheet music with a sequence of notes is the "software" for that instrument. Are you suggesting a song should be patentable? Software is nothing more than a "song" you can play on a computer.

I also wrote another post.

-

Re:Patents Are Not a Problem...

[zungu]

The fundamental problem with understanding software innovations is that it is perceived similar to writing and not designing. A piece of code written to say do speech synthesis may appear to be a "song" that a computer can play as per your analogy. However, there is a real innovation there - creating speech through a machine. I think one ought to get protection for such an innovation. The nature of software as writing may change over the years. Unfortuantely, due to its written nature, software is considered similar to literature and not an engineering design. Imagine a 3-D printer with robotic capabilities that can accept an engineering blue-print as an input to create a mechanical structure. Now, will this engineering design be a "song" that the 3-D printer can play? What about the innovation underlying this "song" in the design? Once software moves from writing to assembling components, people will realize its greater resemblance to engineering than literature. Software patents, or for that matter any patents, capture the innovation behind designs, code, models, plans etc and not the design per se.

Re:Patents Are Not a Problem...

[Alsee]

Software does not need to be run on a computer. Any program a computer can run can also be run inside a human mind by thinking that sequence of thoughts. A computer is just faster.

Software is nothing more than a sequence of thoughts. A sequence of thoughts is not an invention and cannot be patented.

If that supprises you or strikes you as rediculous, I swear - any sequence of program instructions in software that a computer can do can be done mentally. I'm a programmer, I know. It's merely a question of memory and speed. The fact that computers have better memory and faster speed is irrelevant to the software itself.

Once software moves from writing to assembling components

Software cannot assemble components.

You can certainly make an INVENTION that assembles components and there's no problem connecting that invention to a computer that happens to run software. The software cannot BE the invention and it cannot contribute to the patentability. An invention that assembles components is an invention whether is is directed by a person or by software.

creating speech through a machine

Software can do one thing, and one thing only: math. That math can even grow to a huge complex equation making a string of numbers that match the waveform of speech. That computer can be connected to an invention called a speaker - and that speaker can then produce speech-sounds.

Those calculations could (slowly) be done purely by thinking the exact same sequence of steps. That person could then send those same numbers to the speaker and produce the exact same sound. Is that sequence of thoughts patentable?? Does using a computer to do it faster make it patentable?

real innovation

Was calculus an innovation? Sure it was. Is calculus patentable? No. You can write new and creative texts and useful texts, you can write new and creative and useful equations, you can write new and creative and usefull code. None of them are "inventions".

I think one ought to get protection

I agree.
Software already has protection. Copyright. Of all things in the universe, why should software alone have double protection?

I guess we could talk about dropping copyright protection on software and it would probably be better than the current calls for double protection. I think we agree that would be a very broken system :)

Software has always automatically been covered by copyright protection. It took a recent changes in the rules to permit software patents here in the US. Japan then followed under US pressure. The rest of the world, particulary the EU, is fortunately keeping the good old rules that math isn't patentable. Extending patents to software is an anomoly.

Unfortuantely, due to its written nature, software is considered similar to literature and not an engineering design.

An engineering blueprint is protected by copyright even if it is a picture of a patentable invention. Software can draw a picture and simulation of a patentable invention too, like a cotton gin, but it is still merely a copyrightable image. Even if you connect a cotton gin to a computer, it's the gin itself that is the invention.

What about the innovation underlying this "song" in the design?

Isn't there any innovation in actual songs? Chords were certainly innovative at one time. Certain musical patterns and structures were certainly innovative. Unfortunately I know squat about music and can't give better examples :)

-

Re:Patents Are Not a Problem...

[zungu]

By the way, I too did active programming for a long time to realize what programming is all about. Not to mention my B.Sc. in CS (Rank 2 in University), C programmer of the Year yada yada yada. One major problem in your deep analysis is that you consider "patentable" as a special kind of status. Hence, a mechanical invention is patentable, but not software. Patent is a mere legal right, it does not have a hallowed special status as some natural mechanism. Like we can say for a substance that it is either soluble in water or not soluble. Hence, inventions cannot be separated by some natural criteria as patentable and not patentable. Patent is a legal right and is extended to many inventions depending upon society's need to bargain with the inventor giving him exclusivity in return for disclosure. I think that due to the complied nature of software where the original code is almost secret and unreversible, software makes a great candidate for a patentable invention. If software will pervade all sorts of machines and processes in the soceity then society and law does have an interest in getting disclosure of the concepts underlying such socially important software. Hence, there is need for software to be patented. I agree that a lot programmers will find it inconvenient that parts of their domain are protected by patents. However, it will also open-up a vast area of information that was previously unknown. A classic example is Adobe's Acrobat. The PDF file format is tightly protected by Adobe. Nobody would ever have found out mechanisms for underlying the PDF files and reader assuming that reverse engineering was hard or impossible. Of course, when some software becomes too popular there are kids out their who will reverse enginner it, however that is not the point. Adobe's patents on Acrobat technology has revealed so much information about the PDF mecahnism (see patents listed when Acrobat reader's splash screen comes up). As to your point why Calculus is not patented. The society has made a conscious choice that mathematical techniques will not be patented. Also, it has decided that medical methods of treatment or surgery are not patentable. Software is not as important as surgical technique or calculus to be not patentable. Yes, a large section of society like programmers and geeks would argue against patentability of software - however - a majority of society that is more concerned about safety and efficacy of software would like the underlying information be out in public. That is the reasons that judiciary declared software to be patentable. Europe's opposition to software is opposition to the US dominance, and not based on any principal. As to software being math. A large body of physical world is software. "A New Kind of Science" extends this to wider range of natural processes. For example, chemical reactions are pure software when designed in brain and on paper. They are only real reactions when chemicals are mixed. Should this chemical software be patentable or not? There is no natural answer to this. Chemistry is patentable since society thinks there is a value to it. Now you can forever argue the differences between chemistry is not software is not math is not chemistry, but that is not the point.

Re:Patents Are Not a Problem...

[Alsee]

If you are/were a programmer then you know perfectly well that any software can be mentally exectuted step by step. I do it all the time when debugging. Computers can merely do it faster and with better memories. Any software is actually nothing more than a list of mental steps, a sequence of thoughts. Any software patent can be implemented and run and violated without using a computer at all. That patent can be implemented/run/violated by a person sitting motionless thinking through those software steps. Pure thought.

You cannot patent a sequence of thoughts.

There is certainly nothing inventive or non-obvious about using an ordinary computer to simply do it faster. If someone invents new hardware and connects it to a CPU running software they can certainly patent that new hardware.

The society has made a conscious choice that mathematical techniques will not be patented.

No, that was not an arbitrary decision.

You invent physical objects and physical processes. Ideas and thoughts are not inventions.

As far as I know every single patent system on earth agreed on that, and for good reason. It was only the US, and only in the 80's, that the supreme court mistakenly crossed that line without realizing it. That one error open the door for all subsequent software patents. Then the US pressured Japan into changing their law to match, and tried to pressure the EU to change their laws.

You can change the legal definition of aircraft to include poodles, the law can place poodles under Federal Aviation Administration authority, you can sue and imprison poodle owners under aviation laws, but that does not make poodles aircraft. That just makes broken and harmful law.

Something like x=43y^3+3y^2-y+1 might be useful and new and non-obvious, but it's never an invention. For any software there is an identical math equation. There is no difference between patenting that softare and patenting that equation.

Poodles are not aircraft. An equation is not an invention. A sequence of thoughts is not an invention.

when some software becomes too popular there are kids out their who will reverse enginner it

Too popular?? Kids?? You mean "trouble maker kids"?
LOL, you make it sound like reverse engineering is bad or something!

Hell, the original PC BIOS was reverse engineered. And not by kids, by professionals who routinely work in that language and who have no trouble reading it. Reverse engineering is a perfectly good and well established and business practice in everything from cars to software.

I think that due to the complied nature of software where the original code is almost secret and unreversible, software makes a great candidate for a patentable invention.

There's nothing special or secret or unreversible about compiling code. As a matter of fact the second programming language I ever learned was machine language. It's just another programming language and there are plenty of professionals fluent in that language who read and write it all the time.

There's no disclosure problem at all. Virtually all software blatantly "discloses" itself just by watching it run. In the rare cases like RSA cryptography (about the best candidate for a "software invention") it's easy for an expert to locate that function and identify the equations. The executable itself always provides disclosure.

Europe's opposition to software is opposition to the US dominance, and not based on any principal.

Woohoo! That's a good chuckle!
"Patent protection is vital if we are to challenge the US dominance" - Arlene McCarthy, the prime Crusader in the charge to reverse EU law to redefine software as patentable.

So you have it backwards, the EU refused to reverse its l

Re:This won't spell the end to software developmen

[Mr Smidge]

There is an entire political party devoted to passing laws that nobody will respect.

I am a UK citizen, and I'm afraid I don't get your reference as I don't have much knowledge of US political parties.. But it sounds bad anyway.

I think that's his point...

[Millennium]

Correct me if I'm wrong, but I think that's exactly what he's getting at. Revoke all patents on mathematical algorithms, but leave copyrights on code in place.

End result: you still cannot copy another person's code, but you could independently develop competing software..

Not ready for prime time

[Carch]

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.

Indeed

[JMZero]

I agree, and I didn't mean to suggest that software patents are benign. While I do think that a company like IBM registers patents primarily as defense, they certainly have grave potential ramifications.

I think the solution here is very short patents on software/business methods (about 3 years), and shorter patents on traditional inventions as well.

It no longer needs to take a long time to get a reasonable competitive advantage from an invention - law should reflect that.

Re:This won't spell the end to software developmen

[HiThere]

They passed that stage a long time ago.

People now obey the law for pragmatic reasons, or they don't. The government by it's own actions has forfeited any moral authority. But new generations keep coming along, and the schools system trys to ensure that they will trust the honesty of the government. One of the reasons the Feds took control of the public schools it to ensure that this would continue. (You don't think the Feds control your public schools? Check where the money comes from. You may be the ultimate source, but the feds have their thumb on the control lever.)

Patents can definitly be a problem.

[rumblin'rabbit]

First, anytime you have to go to court over a patent, you're talking big bucks and serious distractions. This gives a big advantage to big companies - many small companies can't afford to defend or challenge a patent.

Second, patents are assumed valid by the courts until shown invalid. This means it is not cheap or easy overturning a patent. Just because you found one case where this was so, doesn't mean they all are.

Third, most patents in the U.S. last 20 years from the date of first filing, not 17 years from the awarding of patent. That was the old system.

I still think patents have a place, but what's needed are better quality patents (clear, original, and not overly broad), and cheaper, faster ways to challenge the more dubious patents (I heard they were working on this).

Re:Patents can definitly be a problem.

[unoengborg]

Perhaps, there should be substantial a fine for the applicant, if prior art was found. That way he would have to investigate prior art before filing a patent.

Re:This won't spell the end to software developmen

[HiThere]

To an extent. But most big companies primarily get their patents to use defensively. Mostly.

But there are the equivalent of ambulence chasers. I'm not sure if Eolas is one, MS has a bad name when it comes to respecting others rights.

But: Despite the fact that having patents can keep others from abusing you with their patents, patents are still a net evil. A large net evil. In fact, it's not even close.

This isn't to assert that they were always evil. Perhaps they were a net social benefit in the 1800's. Maybe. There is some dependence on the number of people working on invention in a particular area at the same time. Also on the sheer number of patents. (It may well be impossible for examiners to make wise decisions now, and yet have been possible when there were many fewer patents.) But now they are a vile evil and a cancer on society.

And when given the choice:

[Perianwyr Stormcrow]

When given the choice between:

having a general purpose system that does 50% of what I need to do

having a general purpose system that does 100% of what I need to do

I am always going to pick the second. Linux does not have:

Illustrator (lack of this is HUGE, and don't tell me to use Sodipodi 'cause it ain't cuttin' it.)
Photoshop (don't tell me to use the GIMP, I've been having this argument with people for 6 years and it is not holding any more water.)

You also can't play Ultima Online on it (at least if you want to use UOAssist.)

Now, that isn't to say that Linux doesn't kick ass for certain specialized applications. 3d comes to mind- there are many many high quality 3d apps you can get for it, and most of them are things I would not mind using, (assuming someone else paid for them, ha ha.)

But it's not a platform for graphic or industrial designers- yet. And I've been saying that yet for years and years so who knows.

I will however agree that Linux would work for all of my non gamer non graphics professional friends who have Win98 PCs infested with porn spyware and trojans.

Re:And when given the choice:

[t_allardyce]

Id agree with that and add Blender - its a great start to a program but it just does not have vital features yet (like an effects/transform stack). GIMP is also lacking this, while Photoshop has a useable one (im talking about the effects settings that can be stacked and modified at _any_ time and the adjustment layers). These features are pretty much going to be the 'dynamic linking' of the graphics world. However POV-ray is absolutely amazing and has been invaluable several times and im really hoping GIMP 2 will cut it and that blender will get those few extra features that will make it easily as good as anything else. I think everything is getting very close and proprietry software often stagnates and goes for years without adding anything useful so its a good idea to hold in there and atleast begin to learn these programs because they will become very useful soon. (Especially if your trying to forge some money and photoshop is being a bitch)

biz processes == bad

[Tired_Blood]

patenting business processes is really bad.

Some crazy friend I know says that patents are good because they provide a reason to disclose new ideas. Then other people can learn from the new idea and create bigger/better ideas.

Here's an example: a construction company that patents building residential houses that have a "business area" within the home. The invention is the incorporation of another type of room within the structure to serve business uses (whatever that means).

So this one small construction company gets the business-model patent. Until the patent expires, this one business has a monopoly on building houses with a certain room. It doesn't matter that they can only construct one home at a time and are geographically isolated - no one else can build a house with a similar feature.

The USPTO is giving out market monopolies by awarding business patents. That crazy friend I mentioned earlier also told me that the US government doesn't like monopolies. Like I said, that friend is crazy.

Re:biz processes == bad

[ScrewMaster]

Probably the same place that Bullwinkle graduated from: Whatsa-Matta U.

Re:Who cares about Linux

[CelloJake]

Exactly what did the United Nations do with a Billion dollars of aid?

Population Control/Infantacide.
Promote Non-Circumvention Laws.
Try to Tax the Internet.

Its not the math, it's the GUI

[krysith]

I doubt that it is the declarative statements which make the judges feel that the software is patentable. The majority of the overly broad software patents I have heard about cover essentially GUI functions. I have never heard of a software patent which is basically a 'math' function rather than a 'usability' function (of course, they could be out there). I think that the reasoning in the judge (or patent examiner)'s mind goes something like:

This is basically adding a button which does 'X'

If this were a machine, adding a button which does 'X' would make it patentable

Therefore, this must be a patentable application

The problem with this chain of reasoning is that the computer (which was patented in a zillion different ways back in the day) and the operating software already allows change of functions implicitly. That's what they do! Thus allowing patents on specific implementations of GUI's or application interfaces is equivalent to allowing someone to patent the use of a standard swiss army knife with the blade and the corkscrew out at the same time. Someone needs to point out that it's already prior art. The dumb thing is that it needs to be pointed out again, and again, and again...

Re:Its not the math, it's the GUI

[Tablizer]

The majority of the overly broad software patents I have heard about cover essentially GUI functions.

That is the "business process" patents.

This is basically adding a button which does 'X'. If this were a machine, adding a button which does 'X' would make it patentable. Therefore, this must be a patentable application

But in the past you could not patent the results, only the implementation. For example, you couldn't patent the idea of a motorized vehicle, you had to patent the implementation of a motorized vehicle. But this is all changing with "biz process" patents.

Just do everything as a batch job written in Prolog :-)

Arsenal of democracy

[stinkenstein]

Couldn't we (meaning someone with more actual energy than me) put together an open source patent portfolio? This could be used to offset the dampening effect of corporate defensive portfolios.

Attorneys are sposeda donate 10% of their time to pro-bono causes, I think patent lawyers oughta do this too. A vanilla patent app can be got for 8-12K. What we (yes, there is a mouse in my pocket) need to do is set up some sort of foundation that patents can be donated to, which will serve as protection when an IBM or someone comes breathing down Open Source's neck.

ie.
Letter from BigCo. says "please cease & desist, we patented the use of 1's in binary code."
Letter back from Arsenal of Democracy says "oh, yeah, well we hold the patent on the 0's"

The spirit of compromise prevails, and a cross license is worked out.

We're all too good for SlashDot

[Slur]

...of course that doesn't stop any of us from wasting our time here!

It's not patents that are expensive, it's lawyers!

[rfischer]

I just filed a patent application myself. The basic fee for a small entity is $375. 10 * 375 = $3750, not a terrible sum.

If you take the time to learn how the patent process works, it is very accessible to non-lawyers.

Nice words, but they can't wash . . .

[werdna]

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.

Damned good rhetoric, Bruce, but it is too sweeping a generalization, and cannot support a call for change. Experience through 200 years of industry demonstrates that patents aren't a problem to innovation merely because they create exclusive rights in some types of software development, except when they are improvidently granted.

The problem, to me, isn't that patents are granted in software, and it isn't even problematic that bad patents are granted in software. To me, the problem -- and I believe it is a serious problem -- is that the legal system does not provide adequate quality assurance to neutralize the bad effects of that software.

It is not that the Congress hasn't tried. Relatively low-cost procedures for taking bad patents out of circulation, such as inter partes reexamination were created, but alas, with modifications that made them too expensive or too toothless to have the broad-sweeping effect that was desired. Ironically, it was large entities, such as IBM who were promoting these low-cost Q/A procedures, while the small "independent inventor" lobby fiercely opposed them.

I believe this is the area where the most change is still possible, and the biggest bang for the buck to cure the problem exists. It would be better for luminaries like Bruce to push for repairs of post-issue Q/A than to promote what is, essentially, anti-patent FUD.

We can make a difference, but we are not going to see huge changes.

Re:Nice words, but they can't wash . . .

[Alsee]

Let me guess, you aren't a programmer. It's not

Experience through 200 years of industry demonstrates that patents aren't a problem to innovation merely because they create exclusive rights in some types of software development

What an absurd statment. For 205 years such patents were illegal in the US. There was an explicit rule stating that laws of nature, calculations, algorithms, etc. were not patentable. It was only in 1981 that the US changed the rules to permit software patents at all. The Supreme Court screwed up and ruled to uphold a patent on a method to calculate a number (Diamond v. Diehr). They patented a math function to calculate how long to bake rubber to reach the proper hardness.

Most of the rest of the world still forbids software patents. The European Union explicitly forbids patents on software. There has was a recent attempt to reverse it, but the existing ban against patenting software and math and algorithms won.

As far as I know it's only the US and Japan that are STUPID enough to permit patents on math and calculations and algorithms, and recently did they remove the rules against them.

It's not about overbroad software patents or obvious software patents, the problem is permitting ANY patents of software at all. YOU CANNOT PATENT MATH.

-

Re:Nice words, but they can't wash . . .

[werdna]

Let me guess, you aren't a programmer.

Bad guess. However, it is quite clear that you aren't a lawyer.

What an absurd statment. For 205 years such patents were illegal in the US.

Inventions for methods were, in fact, permited under the first Patent Act. There weren't a whole lot of software invention claims in the late 18th century, I will admit, but somehow I would think this may have to do with the state of the art at that time. Of course, this isn't responsive to my point, which was not your straw man claim that software patents have been claimed and practiced for hundreds of years, but rather what I wrote in fact.

Clearly, my point was that mere monopolies on inventions, manifest as methods or products, have not proved problematic in their own right. I'll let that argument stand on its merits.

There was an explicit rule stating that laws of nature, calculations, algorithms, etc. were not patentable.

That's still the law, by the way, so long as you substitute "mathematical algorithms" for algorithms, and lose the "etc.". We do disagree, of course, whether the present patent act permits claims on a law of nature, a calculation or a methematical algorithm. While laws of nature are certainly unpatentable, applications of those laws always have been, even though they may preclude many means to exploit the law.

It was only in 1981 that the US changed the rules to permit software patents at all. The Supreme Court screwed up and ruled to uphold a patent on a method to calculate a number (Diamond v. Diehr). They patented a math function to calculate how long to bake rubber to reach the proper hardness.

And only a few years before Diamond, in Gottschalk v. Benson, when there was perceived to be a conflict between software inventions and the judge-made "laws of nature" rule.

Now, how, exactly did they screw up? Are you arguing they got the law wrong? On what basis do you draw your conclusions, other than you disagree, ipse dixit, with the result?

Rather than announcing your rules as right, and decrying as non-authoritative the final pronouncements of the Supreme Court of the United States, would you care to propose at least a reason for your argument?

As far as I know it's only the US and Japan that are STUPID enough to permit patents on math and calculations and algorithms, and recently did they remove the rules against them.

did writing in capital letters make the statement more persuasive? was there an argument at all, or just name-calling?

It's not about overbroad software patents or obvious software patents, the problem is permitting ANY patents of software at all.

Because you say so?

YOU CANNOT PATENT MATH.

Uhuh? And had I written, "you can't patent physics," but in large letters, would that be an argument against patents relying on physics?

See, all evidence is to the contrary. Software patents are patentable in the US, and fully enforceable. Merely insisting they are wrong doesn't make it so. And merely insisting they will destroy the economy is inconsistent with hundreds of years of experience with the patent system.

Capitalizing your claims doesn't make much of an argument. Bruce's generalization doesn't help either. Changes to the patent system that are actually possible should be pursued, particularly when they hurt the system -- as is the case when a bad patent issues.

In the meanwhile, you are clearly full of capital letters, but somewhat devoid of a nuanced understanding of the patent law.

Indeed, there are three classes of arguments we have seen: (i) patents are bad; (ii) software patents are bad; and (iii) bad software patents are bad.

While i have seen credible arguments in support of (i) and (iii), there are rarely more than capitalized feeble assertions of nonfalsifiable propositions in support of (ii), much as we see in the previous message.

for my part, I

Re:Nice words, but they can't wash . . .

[Alsee]

Ah, a programmer. Cool.

(i) patents are bad;

Neither of us is making that argment, so no need to waste time on "defensive" arguments.

(iii) bad software patents are bad;

True by definition, chuckle.

And had I written, "you can't patent physics," but in large letters, would that be an argument against patents relying on physics?

There is a big difference between trying to patent physics (which is not and cannot be an "invention") and an invention that happens to make use of physics.

(ii) software patents are bad;

If calculus were "invented" today, do you suggest it would be patentable or should be patentable?

If I write down some math equation, say E=MC^2, or the math function for a satellite orbit, and assuming I were the first to write it, do you suggest it would be patentable or should be patentable?

Every program is in fact nothing more than an example of a mathematical function. You can in fact run a peice of software through a mathematical theorem prover and prove the correctness of the software. Yes, there are limitations on the capabilities of such automated theorem provers and they would immediately choke on any sizeable peice of code. The point is that all software really is nothing but pure math.

You can utilize physics or a math equation (such as software) when making an invention, but they are not themselves inventions.

Diamond v. Diehr, there's nothing wrong with patenting a process of making rubber. However that is not what they actually patented. They actually merely wrote down some math equation. They "invented" math to calculate a number. THAT is what they patented, and that is what opened the floodgates for patents on software.

As a programmer, you should be perfectly aware that given enough time and memory skill, any software can be run purely mentally. Patenting software means you are actually patenting that sequence of thoughts.

Sure you can imagine running a cotton gin and think through it processing your imaginary cotton, but those thoughts would not be the invention itself and it would not violate the patent.

You can patent objects and processes, but you cannot patent a sequence of thoughts. Any software is nothing but a sequence of thoughts. And there's nothing particularly inventive or non-obvious about using an ordinary computer to work through those calculations faster.

You can patent a player-piano, and you can patent a mechanism and process for having various holes in a sheet of paper produce various notes, but you cannot patent a song. You can write that song by punching an arrangement of holes into that sheet of paper. Those holes are a sequence of instructions - they are software - for the player piano. Exactly the same way software used to be written as holes in punchards. They are the exact same thing. A song is software for a player-piano machine and software is a "song" for a computer machine.

If software is patentable then songs are patentable.

P.S.
Off-topic, but relating to being able to run any program purely mentally, you can also violate the DMCA purely mentally. "Circumvention tools" are nothing but information and knowledge. You can "run" any circumvention "tool" through pure thought and illegally access the scrambled copyrighted material. Sitting perfectly motionless staring at "protected" matierials and just thinking. Pure thought-crime. Bad law.

-

Re:Nice words, but they can't wash . . .

[werdna]

Again, you argue against a straw man. As noted, method and apparatus claims have been patentable for 200 years. The question is not whether a particular claim is directed to a patentable method or an unpatentable "mathematical algorithm," but rather what is meant by the latter term. Alsee would like the world to treat this body of law differently than many learned scholars would have, by a reductio ad absurdum that simply doesn't pass muster.

First, one must understand the judge-made exceptions, and their purpose, and then one must understand how they have been applied, not only in Diamond, but also its progeny, in particular State Street Bank and the AT&T cases.

Alsee, if you are genuinely interested in a studied colloquy, drop me an e-mail. The detailed rebuttal of your hand-waves is well beyond the scope of this forum and off the point of my argument to which you first responded.

Bottom line, many (certainly not all) software inventions (when novel and unobvious) are patentable, few (if any) songs are patentable in the sense you wish to argue, and the courts have little trouble distinguishing these. This is because the law is not as you think it is.

Re:Nice words, but they can't wash . . .

[Alsee]

For some reason I'm in a bad mood. I tried not to take it out in this post, but I think I failed, chuckle. If you have constructive information or debate I really do welcome it.

The detailed rebuttal of your hand-waves

LOL, Your entire post is nothing but one big hand-wave!

Again, you argue against a straw man. As noted, method and apparatus claims have been patentable for 200 years.

I never disputed patents or process patents. It is a straw man argument to say I am making that straw man argument, lol.

The question is not whether a particular claim is directed to a patentable method or an unpatentable "mathematical algorithm," but rather what is meant by the latter term.

You talk about redefining "mathematical algorithm", but don't ever do so.

Patentable subject matter is the very heart of the dispute. You can patents a series of physical processes to manufacture a drug, but you cannot patent a math equation. The Diamond case was a patent on a mathematical integral. They merely "invented" a math equation. You cannot patent the "process" of sitting motionless, THINKING about that math equation, and knowing that the equation equals six. And it is no more inventive to say that a computer can say it equals 6 faster than a person can. And that is what Diamond patented.

If you want to defend that position that software is patentable then please do so, show how Diamond is patentable.

Alsee would like the world to treat this body of law differently than many learned scholars would have

Alsee would like to point out that Werdna has not actally addressed anything Alsee said. If Alsee was wrong about something then perphaps Werdna would like to say what is incorrect, and importantly how it is incorrect.

by a reductio ad absurdum that simply doesn't pass muster.

And why exactly do they not pass muster? Did I make an error somewhere? You're a programmer, do you dispute that any program is actually a math function? Do you dispute that software instructions are no different than note instructions on a player-piano roll?

You can't just say you don't like the result. You'd actually have to show where I'm wrong.

First, one must understand the judge-made exceptions

Apparently Alsee has all sorts of unspecified missunderstandings. Apparently one would not like to waste time naming or correcting them

and then one must understand how they have been applied, not only in Diamond

More unspecified missunderstandings. Please enlighten me how Diamond amounts to anything other than a patent on evaluating a specific integral, something you can do purely mentally. If you want to argue for patents on "mental processes" then I have a wee bit of a problem with that.

State Street Bank and the AT&T cases

I guess we can look at other cases if you like, but you've got a big problem if you allow the first domino to fall down. Diamond opened the door for all software patents. If anything taht should be the easiest case for you to make, Diamond is supposedly a manufacturing process patent. *If* that holds up then maybe we can consider patents that don't even pretend to go beyond pure data-processing.

Alsee, if you are genuinely interested in a studied colloquy, drop me an e-mail.

Chuckle, a rather hollow invitation considering that your e-mail address isn't available. I also almost never check my e-mail, so that would be inconvienent for me. I'm not saying I can't or won't, but it would be inconvient

The detailed rebuttal of your hand-waves is well beyond the scope of this forum and off the point of my argument to which you first responded.

That's odd. I thought the scope of this forum was the Perens on Patents story which questions the very validity of software patents.

I thought the point of your argument fundamentally relied on on your statement that "The probl

Sounds like . . .

[Anonymous Coward]

Illustrator (lack of this is HUGE, and don't tell me to use Sodipodi 'cause it ain't cuttin' it.)
Photoshop (don't tell me to use the GIMP, I've been having this argument with people for 6 years and it is not holding any more water.)

also blah blah graphics designer blah blah

Sounds like you want a Mac, my friend.

Re:Annonymously posting to the internet.

[Bendebecker]

It will end up like the music industry and the RIAA. You can either buy only from independents(small developers), you can pay for legal copies of overcharged products, and/or you can dl pirated copies of the product online.

Perens conclusion is wrong

[geekee]

"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."

Sounds like Perens is trying to make the evidence fit his preconcieved notions. Software patents do not necessarily benefit large corporations. Just look at Eolas, a one man company hold Microsoft hostage over a helper launching patent. I agree with Perens that software patents are overly broad, but I think this hinders big and small companies alike. I see no reason for Perens' attack on large companies over software patents, except that he must have a preconcieved notion that they're bad, and is using this as an unwarranted attack against them.

Bzzt. Wrong.

[Wylfing]

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.

Wrong, thanks for playing. No matter how many times it gets said, few people seem to understand -- even people who should understand, like our Mr. Perens.

Patent infringement, like copyright infringement, is actionable NOT illegal. The police will NOT come and arrest you because you inadvertently developed a homebrew memory allocation routine that is patented by ACME. What MAY happen is that ACME uses its patent portfolio to keep you from effectively bringing your software to market, provided ACME sees any benefit in doing so. So while in the future (now) there may be (are) high barriers to entry in the software marketplace, writing your own well-meaning code will not be (is not) illegal.

Re:Patents and the immorality of open source softw

[Bendebecker]

And the bad people can use knives and guns to kill people quicker than with their own hands.

You've never seen the Matrix, have you?

When Software Is Outlawed

[Master of Transhuman]

only outlaws will have software!

Bring it on!

1) Outlaw software!
2) ???
3) Profit!!

Embrace the patents!

[CmdrTHAC0]

Open source must embrace patents in the same way that the GNU GPL embraces copyright. With this, we could force closed-source development houses to fund open source, because the license is only free to other open-source projects.

What harm would there be in creating such a license? It would give Red Hat a graceful way to keep their promise that their patents would never be enforced against Open Source, and give the rest of the community a collective defensive patent portfolio.

The harm in not creating such a license is pretty clear; the article is one possibility of the extension of current practice. Another more immediate and likely scenario is that OSS could become a de facto R&D lab for Microsoft. We're already seeing that occur with XUL (or libglade, which is pretty similar) and XAML.

(This post based on the ideas of another; I'll drop the link to him so he can elaborate and/or take credit...)

It's the psychology stupid.

[shubert1966]

Basically, hereditary drives to acquire sustenance for self and offspring has run amok, see "Lawyers".

Some of these frivolous lawsuits are just taking advantage of the ever-increasing ignorance of human beings. Advancements in technology make this worse everyday! There is more and more information to read, digest and take advantage of (read: defend oneself from the merciless onslaught of) everytime someone hits "Enter".

It reminds me of the old Judges's adage that "Ignorance of the Law is no excuse.". Whie that may have been true a long time ago, I doubt I could read all of the laws and comprehend what they mean in every locality, so frankly, ignorance is an excuse. Lawyers run amok.

None of us invented the physical laws of the universe, we just suspend equillirium in unique ways by applying our logic. I say: "Big Deal".

If I hold a tree branch back as we are walking on a path so that we don't get smacked - can I patent it? It's obvious, but I got there first!

Patents are a crock. Lawyers believe their own hype. If no one paid property taxes the Sherriff could do nothing.

CS is *not* math

[fw3]

Nor is CS entirely limited to algorithms, nor are algorithms a strict subset of mathematics. (Mathematicians (i.e. people with PhD's in math) are notoriously bad at writing efficient software algorithms). In any case as someone else replying to this comment points out are in fact not patentable.

If all technology could be reduced to physics (which it can't), and by extention to maths then by your logic everything is math / not patentable.

Furthermore, "IP" generally includes the very foundation that happens to make 'free' software possible in the current context.

So what preceeded this context? Trade Secret, which in some instances is still the better strategy and is favored by some organizations. If it weren't for the patent system then most inventions would be instead held as trade secrets, which according to the 'mantra' of free/oss would be worse still.

Personally I prefer the exchange of requiring disclosure in exchange for a limited time monopoly is a better system than one which would strongly incentivize industrial espionage.

Perens seems to be a perennial supplier of ill informed *opinion* (as opposed to knowlege) on patents. Slashdot is, of course on average even less well informed about the mechanism and rules of the patent systems.

But then "it's only /.".

What about crypto patents then?

[dmeranda]

Ever hear of the RSA patent? If ever there was a software patent that was as close to being a mathematical formula I don't know what it would be. And that single "math" patent had major influences on suppressing innovation and computer security for decades. The world of cryptography is filled with supposedly unpatentable math formula patents.

There are other computer science fields that are also overly-burdended by patent minefields, such as text searching algorithms, compression algorithms, graphics compositing algorithms, and so forth. It's not just the GUIs, it's lots of stuff that actually looks and acts like math, and in many cases is actually represented by actual mathematical formulas! And yet they were patented.

CS **is** math

[MarkusQ]

Point by point:

• CS is *not* math.

  What do you expect me to say to that? "Is so, is so!"?

• Nor is CS entirely limited to algorithms,

  No one said it was.

• nor are algorithms a strict subset of mathematics.

  Yes, they are, or at least the study of them is, in the same way that numbers, groups, platonic solids, etc. are all part of mathematics.

• (Mathematicians (i.e. people with PhD's in math) are notoriously bad at writing efficient software algorithms).

  So what?

• In any case as someone else replying to this comment points out are in fact not patentable.

  What? That "sentence" makes no sense.

• If all technology could be reduced to physics (which it can't), and by extention to maths then by your logic everything is math / not patentable.

  Assuming (incorrectly) that physics was reducable to math, sure. But it isn't. That's why we have expermental physicists, but no expermental mathematicians.

  So if two things that fundementally aren't true somehow became true I'd have to rethink some of my oppinions.

  I can live with that.

• Furthermore, "IP" generally includes the very foundation that happens to make 'free' software possible in the current context.

  Imagine that. Something that is part of the current context makes something else that is part of the current context possible in the current context?

  If there were no patents at all, 'free' software (as you call it) would be just as possible.

• So what preceeded this context? Trade Secret, which in some instances is still the better strategy and is favored by some organizations. If it weren't for the patent system then most inventions would be instead held as trade secrets, which according to the 'mantra' of free/oss would be worse still.

  Why so? I've never heard any 'mantra' that claimed that people should be required to publish trade secrets, or any other type of secret for that matter. The objection is only to people who try to force other to eat something but won't tell them what's in it.

• Personally I prefer the exchange of requiring disclosure in exchange for a limited time monopoly is a better system than one which would strongly incentivize industrial espionage.

  Because, like, there's no incentive to industrial espionage now, right?

• Perens seems to be a perennial supplier of ill informed *opinion* (as opposed to knowlege) on patents.

  That's called an "Ad hominim attack." Try to avoid it.

• Slashdot is, of course on average even less well informed about the mechanism and rules of the patent systems.

  I'm glad to see you doing your part to bring up the average--unless maybe *gasp*--

  You're a troll, aren't you?

  I feel so used.

• But then "it's only /.".

  That's not a very good excuse. You could at least try to argue coherently.

-- MarkusQ

Re:CS **is** math

[fw3]

No an ad-hominem is 'he smells bad therefor he is wrong' (your accusing me of being a troll e.g.)

I've read a lot of what Perens says about patents and having a fair bit of experience with the patent system and hold 6 patents total (no not software). Perens does not show up anywhere on the USPTO, and his writing does not lead me to think he understands patent law or practice. So I'm in a fair position to judge whether his opinion is well informed and yes I believe I bring the average up (not hard to do here).

If I made a mistake it was arguing with an idiot (because often people can't tell the difference). (And yes that's an ad-hominem). But let's take on your actual points:

That's why we have expermental physicists, but no expermental mathematicians
Allow me to refer you to http://www.expmath.org/ http://www.expmath.info http://www.cecm.sfu.ca/projects/PhilVisMath/ www.geom.umn.edu/locate/expmath

If there were no patents at all, 'free' software (as you call it) would be just as possible.
I was particularly thinking of copyright, on which GPL and all other free licenses I know of depend.

Yes, they [algorithms] are, or at least the study of them is,
No, they are not. Algorithms are widely studied and mostly developed in computer science by people who by and large have little formal mathmatical training, conversely not many mathmaticians concern themselves with algorithms (in either practical or theoretical terms)

Because, like, there's no incentive to industrial espionage now, right?
Not none, simply many orders of magnitude less. I have simply presented a consequence of not adopting patent laws.

Trade secret in a world of patents is a generally less-useful approach because people don't keep secrets well, on the other hand methods and inventions which are practically difficult to enforce are better suited to TS.

Re:CS **is** math

[MarkusQ]

Ok. I'm an idiot and you're a troll. I'm willing to consider those points settled if you are.

Of the other points you responded to, the first two have become off topic digressions and the second two are very close to following.

1. The existence or non-existence of people calling themselves expermental mathematicians has no bearing on the difference between math and physics, which itself has no bearing on the topic at hand apart from your attempt to bait me into arguing against all patents. Since you yourself admited that the premise on which you were doing so was couterfactual, we can drop the point.

2. The topic under discussion is software patents, not the need for copyrights to enable free software, which I do not stipulate but see no point in arguing here.

3. The facts that algorithms are studied by people with little formal math background and that most mathematicians do not study algorithms are not relevant.

   Most triangle are drawn by people with little formal mathematics training and not many mathematicians concern themselves with triangles.

   This does not somehow mean that geometry is no longer a branch of mathematics.

4. If you restrict the scope of the discussion to the sort of software patents BP rails against, your concern over industrial espionage evaporates. Why would anyone go to the trouble of spying on competitors to learn the secret of one-click purchasing? Or the arcane art of assigning an e-mail address to someone by using their name, and at-sign, and a domain name? Or using XML to store a document with markup?

   I've already admitted to being an idiot, but I could come up with that sort of "inventions" even on a bad day.

-- MarkusQ

Re:CS **is** math

[Gandalf_Greyhame]

If I made a mistake it was arguing with an idiot

You should never argue with an idiot... as it makes him appear more intelligent, and you more stupid

Re:James T. Nail

[Ataru]

Why aye man.

Re:It's not patents that are expensive, it's lawye

[ozborn]

That's 7 months rent for me...

Are software patents worse for OSS?

[belmolis]

It seems to me that software patents are worse for open source software because, in general, it is hard to tell whether a closed source program infringes or not. If the patent concerns the interface between the program and the outside world, then it is easy to tell, even if it is closed source. For example, if a certain kind of compression is patented, any program that produces output using that kind of compression infringes unless it is licensed. But if the patent concerns something purely internal, it will often be difficult or impossible to tell. For example, if a program uses a patented sort algorithm, how can anyone tell without reading the source? Performance may provide a hint, but in many cases it will be difficult to tell whether the performance is due to a better algorithm in one area or an improvement of another kind. And even if, say, the complexity function looks like that for a patented algorithm, who is to say that the program is not using another algorithm with the same complexity function?

The push for software patents may not be targetted at OSS, but it seems to me that they pose much more of a problem for OSS than for closed source software.

Shareholder value...

[Slashamatic]

The main task of a company is to create, and maximise shareholder value. If the board does not do this, it can be fired. Therefore it is currently correct practise for companies to attempt to protect their intellectual property and to exploit it with licensing.

One answer is to provide write-offs for donation of IP to the "general good". The problem is then how to value the donation.

No recourse on patents

[Slashamatic]

If I invent a perpetual-motion machine and patent it, I can sell you a license to use my patent. As long as I'm careful with the wording of my licensing agreement, the fact that it doesn't work and cannot work is immmaterial.

However a piece of software sold as a commercial product is something else, there must be some liability there even if it means insurance. Software that is given should have no liability for the person or organisation giving.

Cost!!!

[Slashamatic]

I love your idea, but a defensive patent costs too much unless you are someoe with deep pockets like IBM. Forget the attourney fees, an EU patent costs about 10000 Euros to file. Nothing for IBM, but serious problems for everyone else.

Software is too abstract.

[Slashamatic]

I prefer the rule that was once explained to me.

If I can kick it, I can patent it

An algorithm without physical expression is not really different to a mathematical formula. In any case, there is always copyright. Why should software enjoy protection under two different types of intellectual property law?

Patents can be expensive, they are certainly expensive to research. It is relatively easy to ensure something like a new printing press doesn't infringe patents, it is less easy to determine whether a program does.

Also whilst patents remain fairly cheap in the US., they defiitely aren't elsewhere. This effectively acts as a barrier to keep all except the richest (who can afford international patents) out of the market.

As a last point, the patent system fails even for hardware when it gets to interface specs. Look at the RAMBUS disaster. Interfaces should never be patentable after all they represent a way in which one non-infringing invention can interact with another.

Imagine a World Without Patents: Thomas Jefferson

[SlideGuitar]

Is the whole theory of patents cracked? Do you really think innovation would slow down in their absence?

It seems like the idea of intellectual property idea is an artificial construct. Nothing wrong with "artificial", but does it really make the world better?

Where did we get the idea that ideas would only have value if someone could own them?

It is not like this was an empirically tested proposition. Rather, I assume, the ideology of capitalism and ownership was extended to a new domain that "by its nature" doesn't seem to permit "ownership".

I'm begining to think that rules allowing the "ownership" of ideas and intellectual property are, if not the root of all evil, at least deeply symptomatic of evil.

Jefferson made the point well:

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."

Thomas Jefferson

A good solution to the patent mess...

[defile]

The entity filing for the patent should be the one that must do the prior art search, and be held somehow accountable for failing to uncover it.

You'd need two motivators: allow someone with a claim but limited funds to challenge the patent, and if successfully challenged the patent is revoked, fines must be paid, and all money made with the patent must be returned -- no tax exemptions.

I stand corrected

[MarkusQ]

I stand corrected. I fear I've gotten so cynical (realistic?) that I missed what should have been an obvious point.

Thanks.

-- MarkusQ

My business process patent

[Gandalf_Greyhame]

1. Patent something trivial
2. Litigation
3. ???
4. Profit

Why is emulation bad?

[Absurd Being]

I would think being able to transform your equipment to the equipment and OS best suited to play the game would work well (aside from the performance hit emulation causes). Being able to cancel execution of windows in a subwindow when it crashes is a plus too.