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An Insider's View of Software Patents
An anonymous reader writes "Ross Gittins at the Sydney Morning Herald has published an interesting insider view of software patents. This kind of thing is starting to be a hot issue down here with the US-Australia Free Trade deal about to be ratified and bring our intellectual property laws in line with Micros^D^D^D^D^D^D^D America's."
Patents, at times, actually are good things, so entirely doing away with the patent system wouldn't be a good idea, nor would adding more money to the patent office budget (the same problems we have now, just more of them), and making the patents harder to apply for would just benefit the offensive-patenting corporations with the money to hire expensive lawyers.
So what do we do about it?
In soviet russia, You ask not what country do for you, but what you do for country!
Oh wait...
IANAL, but one way to improve the patent situation (and the IP situation too, for that matter), which I didn't see mentioned in the article, would be to impose a statute of limitation on infringement suits. This is how they do things in China.
China?! Yes, that's right. Some of their laws are better than ours...
This would prevent asshats like Unisys (and, if applied to IP, asshats like SCO) from suing for infringement WELL after they became aware of the issue. A statute of limitaion would ensure that underhanded tactics such as allowing the public to become addicted to GIFs, and then suing years and years later, would no longer be effective.
This wouldn't solve all of the problems with software patents, but I think it's a step in the right direction!
Visit the Game Programming Wiki!
I think the core of the article implies that the company with most 'spendable' money will win by default in any case.
Patent Office will grant any plausible applications because "The feeling is that anything contentious can be sorted out in the courts."
And what happens in the courts? Small guys are burdened with legal fees, which is related to the time spent on preparation, which big guys can just throw a lot to you. If you don't hire enough lawyers to read each and every line properly, you might get caught even if you are the rightful owner of a patent.
So with or without a patent, big company will eventually monopolize the market by (1) holding a patent and scare everybody off or, (2) taking the patent-holding company to court or, (3) buy out small guys.
Uselessful technology (Air-Charged
Comment removed based on user account deletion
This would avoid the common scenario where the defendant is sued out of existance even though the case has no merit!
AC comments get piped to
1.) The argument that software patents are bad because most software patents are frivolous is a strawman. Most non-software patents are also frivolous. This is not unique to software, people here only notice software patents because they work in software. If you don't like the frivolousness of patents granted then deal with the general frivolousness of the patent system, because "software" patents and "frivolous" patents only intersect and neither contains the other in its entirety.
2.) Software is hardware is software. If you can't patent software, then you shouldn't be able patent hardware either. This was settled the better part of a century ago, in case anyone was paying attention. Pretending that software is a special case that is different from hardware creates a distinction where none exists.
3.) A minority of software patents, just like a minority of normal hardware patents, cover inventions that took substantial research and development effort that no one could reasonable claim to be "obvious". This would seem to be precisely what is supposed to be protected by patents under ideal circumstances and I can't see a reasonable argument that says these inventions should be treated differently than all other patents. Otherwise we would be in the position of allowing frivolous non-software patents and disallowing heavy-duty substantive "software" patents.
That said, it seems to me that the biggest reason a lot of geeks don't like software patents is that it is inconvenient for them. Every rationalization that disallows "software" patents but allows other types of patents has been uniformly weak and inconsistent. If you think patents are bad, then ALL patents are bad, not just the ones you wish you didn't have to abide by.
Bruce
Bruce Perens.
Its expensive enough already. I looked into the possibility of applying for a patent with the intention of freely licensing it to any GPLed product. A defensive patent really. But the patent, even without a lawyer, is expensive enough to put it out of my range unless I'm sure I can make money on it.
I still have more fans than freaks. WTF is wrong with you people?
I didn't think you could sue the Federal Government or something like that. (since they are a part of the Feds anyways)
The funny thing is that you can sue the federal government but the government must give you permission first. While there are cases where the government has given permission to sue, I'd imagine that suing the patent office may be more diffcult than suing a business.
1f u c4n r34d th1s u r34lly n33d t0 g37 l41d
... until they are tested in court. So says the lawer at the company I work for, and who is involved in patent (not software) battles on our behalf in a few countries.
Essentially, he says, the granting of a patent means that you were able to convince some guy in an office that your idea was new, un-obvious etc. etc. So the patent is granted.
The fun starts when your product hits the market and someone else tries to do the same thing. Then it goes to court, and only then is the validity of your patent tested.
From an American perspective, however, what you should be concerned about is the kind of things that this FTA, and subsequent ones, are going to do to lock in the current, ridiculous intellectual property regime. This applies not only to software patents, but restrictions on generic drugs, copyright terms, and so on. In the next decade or so, it's highly likely that there will be serious attempts in Congress to fix some of these issues. What will likely happen, though, is that the executive will come back with the argument "You can't do that! We'll be violating the terms of the free trade agreements we signed with Australia, Albania, and Andorra" (to pick three countries of similar importance to the United States) and the bills will quietly die.
The EFF and other groups in the "less overbroad IP protection" crowd might do well to pay more attention to international treaties, IMO.
Any sufficiently advanced technology is indistinguishable from a rigged demo
--Andy Finkel (J. Klass?)
Applying game theory to long term software industry market, for both open and proprietary vendors, based on software patents...
1) Small software developers are unlikely to benefit from the overall balance of payments from licensing of their own and other vendors software patent portfolios, since other software vendors are just as likely to hold other software patents that the developer uses in his own products.
2) Larger software vendors are unlikely to benefit from payments from licensing of their software patent portfolio, as per above small sofware developers plus the software vendor is likely to hold the lion's share of the sofware target market, profit from software patent licensing will be much smaller in proportion to the overall sales of the vendors own products.
3) Third party intellectual property "holding companies", that do not actively participate in selling actual software, are the only class of organization that can benefit from licensing of their software patent portfolios. In most cases these entities have a very tenuous relationship to the ongoing development of the software methords patented
See Patents bad but also pushing interesting trend
I abhor software patents as much as (if not more than) the next Slashdot devotee, but we don't actually work to pay taxes.
We work to obtain scarce goods. And no matter what technology does, there will _always_ be scarce goods. Real estate. Food cooked in a certain style, available in a certain place (real estate, again). Garbage collection. Military defense.
Technology makes it possible to make an indefinite number of copies of any arbitrary pattern of bits at so close to zero marginal cost as makes no difference, but it doesn't have the same effect on other scarce goods. Without artificial scarcity in bit patterns (or in ideas that get turned into bit patterns), those bit patterns cannot be used in trade for the really scarce goods.
That's economics, but if you think that sounds in any way wishy washy, think of it as physics. It's reality that you can't avoid, no matter how hard you try.
Free software and a limitation on software patents makes sense for many reasons, but those have to do with users taking maximum economic efficiency out of that zero marginal cost, rather than pumping up a giant chokepoint on the economy like Microsoft. Bit patterns and ideas of a truly unusual level of originality, unobviousness (even in the face of a transformative technology like the Internet that makes all kinds of things suddenly obvious) and technical complexity generally should be able to be matters of economic commerce, otherwise those people creating ideas and bit patterns will ultimately fail to be able to afford real estate.
- jon
Ganymede, a GPL'ed metadirectory for UNIX
This kind of thing is starting to be a hot issue down here with the US-Australia Free Trade deal about to be ratified and bring our intellectual property laws in line with Micros^D^D^D^D^D^D^D America's
Boy, do you have this one all wrong.
Microsoft made one of the worst lists in America to get, the list of the top 100 verdicts for last year, three times, as a losing defendant. Microsoft has been on the business end of more 8 and 9 digit patent infringement verdicts than any other enterprise in recent times.
None of the pro-patent rhetoric bandied about these days ever addresses the topic of making software patents sensible, either. I can only imagine it's because it's impractical under our current system.
I believe a lot of us wouldn't mind seeing patents for truly brilliant methods, if we could be assured there wouldn't be one million bad patents for every one good one.
But, just to issue *my* anti-patent rhetoric:
Imagine if our criminal system convicted 99 innocent people for every true criminal, and attempts at reform have proven ineffective. Would you continue to pursue reform, when the damage done far outweighs the good?
The same holds for our patent system. If one patent in a hundred is good, and protects the rights granted by US law, those 99 other patents infringe on *my* rights (and the rights of millions of others) to freely use my knowledge.
That is a nontrivial right. In fact, it is fundamental to freedom.
So, our current patent system is indefensible. It destroys more rights than it protects, and should probably be dismantled, since attempts at reform have failed.
Anyway, end of rhetoric, for this post.
Microsoft is to software what Budweiser is to beer.
Why would the EU want to do that? What's the benefit? I just don't understand. Did someone wake up and think "Well, this IT thingy is too compllicated, let's just focus on agriculture instead. Let's give all IT stuff to USA, and let them figure it out."?
You are not entitled to your opinion. You are entitled to your informed opinion. -- Harlan Ellison
The idea of patents is to compensate innovators by temproarily restricting the freedom of all members of the jurististiction to which it applies, to take advantage of a fact (the invention), such that the original finder of that fact can make money, either by exploiting the fact itself or by charging others for the right to do so.
(Useful) facts are very much like real estate: You can only exercise you property right by limiting the rights of others. In any free society, you need a good reason for restricting the rights of the public; in the case of patents, this is done to compensate the inventor (the original finder of the fact) and thereby spur innovation. If patents aren't used to that end (and in the case of software patents, they rarely are), then they are damaging to society.
So what we need is a scheme, that encourages patents only if they are actually used to make money by making the benefits of the invention available to the public. This simplest way to do this is a price-dependent tax on patents.
Whoever wants to file a patent has to put a price tag to it, for which is is willing to sell out his patent to the public domain. He is completly free by selecting this price. However, to uphold his patent, he has to pay an annual fee of, say 1%, of this buy-out price. The price can be adapeted yearly but only in a range of, say, +/- 25%. If, during the runtime of the patent, anyone pays the patent holder the buy-out price, then the patent enters the public domain immediately.
If the patent is any good and actually used to produce goods or give away licences, 1% is a rather small amount. If its only used as a lockaway patent, to hinder innovation, protect an obsolete business model or as a weapon in court, then it is expensive, as it doesn't generate any direct revenue.