Perens on Patents

← Back to Stories (view on slashdot.org)

Posted by michael on Friday January 23, 2004 @05:19AM from the perennial dept.

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.'"

15 of 366 comments (clear)

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.

--
Five Dolla Moddy-Moddy? ;->
1. 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.
  
  --
  My sig is blank, I typed this by hand.
2. 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.
  
  --
  Table-ized A.I.
3. 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.
  
  --
  Table-ized A.I.
4. 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.)
  
  --
  tasks(723) drafts(105) languages(484) examples(29106)
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".
1. 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.
2. 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.)
treat code like a book by swoebser · 2004-01-23 05:29 · Score: 5, Insightful

Why can't we just treat code like the text of a book? It's illegal to copy text from a book and present it as your own. It is not illegal, however, to create a similar work of your own accord.
Idiocy by mikelu · 2004-01-23 05:33 · Score: 5, Insightful

Patenting of software strikes me as rather nonsensical.

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

Copyright should suffice to protect proprietary code.

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

--
[ .sig file not found ]
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

--
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.

--
Let's not stir that bag of worms...
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
1. 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.