Perens on Patents

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

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

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Re:Prior Art by wankledot · 2004-01-23 05:34 · Score: 5, Interesting

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.

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Re:Prior Art by Tablizer · 2004-01-23 05:44 · Score: 5, Interesting

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.

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Re:Prior Art by AndyRobinson · 2004-01-23 05:59 · Score: 3, Interesting

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 by questamor · 2004-01-23 06:01 · Score: 4, Interesting

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 by Tablizer · 2004-01-23 06:03 · Score: 5, Interesting

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.

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Re:Prior Art by Short+Circuit · 2004-01-23 06:03 · Score: 5, Interesting

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.)

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

Its not the inability of the patent examiners to look for prior art. Just using Google and NEC CitetSeer would help them. It's that they aren't even enouraged to look. It's in the Patent Office interest to grant patents - the more patents they grant the more revenue they get.
There are many more problems too. A good article on the problems with patents, the unworkable solutions and possible solutions can be found in Jeffrey D. Ullman's article Ordinary Skill in the Art
Re:Prior Art by dissy · 2004-01-23 06:06 · Score: 4, Informative

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 by HiThere · 2004-01-23 06:18 · Score: 3, Insightful

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

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

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

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

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

The "garage inventory" thing is a load of hooey - the deck is stacked against the garage inventory from the start. Pretty much the only way the "little guy" makes money off of patents is by submarining them, not because someone ripped you off. The fact that Joe Inventor can't run off 100 million units is precisely why he doesn't benefit that much from patent protection - he's got a limited ability to enter the market already. There have probably been a few cases where a no name guy really did get ripped off and he really did manage to get his day in court and he really did win. On the other hand, there have been cases where cutting your arm off with a dull knife was a good idea - it doesn't make it benefical in general.
Getting rid of this bullshit about process patents and only allowing patents on things that you've actually created and work would be a really good start.
Re:Prior Art by 1,$d · 2004-01-24 09:16 · Score: 4, Interesting

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).

Not Quite by abrotman · 2004-01-23 05:24 · Score: 5, Interesting

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 by kcornia · 2004-01-23 05:27 · Score: 5, Interesting

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 by Boing · 2004-01-23 05:31 · Score: 4, Interesting

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 by Tassach · 2004-01-23 05:32 · Score: 4, Interesting

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.

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Re:Not Quite by gr8_phk · 2004-01-23 05:36 · Score: 4, Interesting

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 by Planesdragon · 2004-01-23 05:40 · Score: 4, Insightful

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

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

Indirect or nonfiscal profit is hardly abuse of the system.
Re:Not Quite by Aidtopia · 2004-01-23 05:42 · Score: 5, Informative

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.)

ugh by digitalsushi · 2004-01-23 05:24 · Score: 3, Funny

'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.

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Its nuts by Zeinfeld · 2004-01-23 05:25 · Score: 4, Interesting

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...

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

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

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

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

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

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

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

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

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Perens interview? by daeley · 2004-01-23 05:27 · Score: 4, Interesting

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

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

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

Re:treat code like a book by ev1lcanuck · 2004-01-23 05:48 · Score: 3, Interesting

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.

sigh by dAzED1 · 2004-01-23 05:30 · Score: 4, Interesting

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 by mcc · 2004-01-23 05:47 · Score: 3, Informative

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.

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

The problem here is that patents are increasingly and increasingly not about ways to solve a problem and about problems
This is indeed a very important point that's often overlooked. Take for example the claims of this European (granted) patent from Siemens. It's a patent on guessing the word you are trying to type on a mobile phone (e.g., if you type 843, it will show "the" instead of "tgd"). They developed one algorithm to do this, but most of the patent claims are about the problem, not the solution (even the more specific claims).
If you make a processing device coupled to a memory, input device and screen guess the word you want to type, you violate that patent. The more specific claims simply add different kinds of keyboards you can use, that you can also use the frequency of chosen words to guide suggestions, allowing people to turn on/off this guiding algorithm, showing a list of possible words if there's ambiguity and let the user choose from those etc... Not really things that narrow the scope of the claims very much.

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

Patenting of software strikes me as rather nonsensical.

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

Copyright should suffice to protect proprietary code.

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

"technically illegal" by Speare · 2004-01-23 05:35 · Score: 5, Interesting

'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.

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What we are doing wrong.... by CajunArson · 2004-01-23 05:35 · Score: 4, Interesting

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.

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

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

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

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

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

Simon.

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

From the interview:

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

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

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

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

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

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Make sure your voice is heard by GillBates0 · 2004-01-23 05:44 · Score: 4, Informative

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.

--
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IBM makes $1.5 Billion/year on patent licensing by Bruce+Perens · 2004-01-23 05:44 · Score: 5, Interesting

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

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Bruce Perens.

Defensive patents by JMZero · 2004-01-23 05:45 · Score: 5, Interesting

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.

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

...Mutually Assured Destruction. Microsoft isn't going to try to bludgeon IBM with a patent suit, because they know IBM has just as many silly patents to bludgeon them back with.
That's true for the big boys, but it still leaves the problem, that a smaller/newer company which doesn't have the patent portfolio will get sued out of existence if they try to do something using some frivolous patent one of the big boys have.
Say for instance using XML as the basis for your word processor?

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

I know its a cliche, but its true.

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

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

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

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

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

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

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

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

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

-- MarkusQ

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

It's these cases where philosophy can bear fruit or really confuse the issue.
On one side if the coin there are the "platonists" who consider math as the uncovering of ideal, eternally existing, abstract objects. On the other there are the "formalists" who consider mathematics as more of a game where theorems are developed logically from axioms chosen arbitrarily.
Then there is Rueben Hersh's connotation that mathematics is what mathematicians do. In lay-man's terms, without mathematicians there would be no math. He further implies that the math we know is decided by the mathematicians. Consider fluxions versus calculus, two different solutions to the same problem and one was superior. They came about in two different ways because the principle mathematicians were different people.
If we follow the platonists approach then math should not be patentable because it just is. A platonist would consider patenting math like patenting a mountain.
Hersh would contend that math is the creation of the mathematician and hence, as a product of personal endeavor, should be patentable.
In terms of the courts view on software, we are stuck in a Hershian situation, so what is the solution? If we had known that this would be the case, the EFF (electronic frontier foundation) or the GNU project could have started patenting software twenty or thirty years ago, thereby capturing the axioms on which software was founded. THIS is what should piss people off. It pisses me off in computer science and biology. Companies are standing on the shoulders of giants who didn't have the opportunities available to them, especially when most of the underlying infrastructure was built with public funds.
Patents are expensive, but there goal is to offer short-term incentives for development in order to release knowledge into the public domain. Sometimes we forget that patents are designed to release knowledge. However, I would favor a progressive patent law where software patents last only five years and drugs targeted at monogenic diseases that don't affect many patients (like huntington's disease and spinal muscular atrophy) last for forty.
That's just me though.
Re:CS is math by MarkusQ · 2004-01-23 06:59 · Score: 3, Funny

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 by MarkusQ · 2004-01-23 07:27 · Score: 4, Insightful

We don't need to go all the way to phylosophy. The Patent Act (which (IIRC) provides the basis for all patents in the US) says, for example "excluded from such patent protection are laws of nature, natural phenomena, and abstract ideas." This does not depend on the dichotomy between invention and discovery. Up until the mid-1970s by the CCPA (Court of Customs & Patent Appeals) no one thought you could or should be able to patent mathematics.
It isn't a matter of discovery vs. invention; it's the fact that patents are a restriction on the freedom of the people given in exchange for certain disclosure. The exchange is offered by the people when it is to their advantage to do so, or at least that is the constitutional intent. The present system has been usrped by the patentors and is being run to their advantage, contrary to the public good and unsuported by the legal basis on which it stands.
Patents were never intended to cover mathematics, be it discovered, invented, e-mailed by the gods or handed down by little green men on 3x5 cards. Math is not patentable.
-- MarkusQ
Re:CS is math by mcrbids · 2004-01-23 07:54 · Score: 3, Informative

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?

--
I have no problem with your religion until you decide it's reason to deprive others of the truth.

Loophole never tried? by Tablizer · 2004-01-23 05:54 · Score: 4, Interesting

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.

--
Table-ized A.I.

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

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

--
_/\ - Sturgeon's Law: 90% of everything is crud.

biz processes == bad by Tired_Blood · 2004-01-23 07:04 · Score: 4, Interesting

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.

--
This is not my sig.

Nice words, but they can't wash . . . by werdna · 2004-01-23 07:41 · Score: 3, Interesting

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:Patents Are Not a Problem... by zungu · 2004-01-23 08:55 · Score: 4, Interesting

...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.

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