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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."
Until we see the Patent Office being sued by someone/company that suffered financially or otherwise because of a bogus patent that the PTO granted, we won't see any significant changes to the way things work now. After a lawsuit or two they might finally get the hint to stop granting such bogus patents and maybe even (gasp!) start reviewing past ones once they realize those might become a liability.
And for those that say such lawsuits would be a burden on the taxpayers, well, I'd say these bogus patent infrigment cases are taking away needed resources to convict criminals.
And besides, the taxpayers might finally take action once they see the PTO's bogus-patent-granting actions is raising their taxes, instead of only bitching and whining all the time.
AC comments get piped to
Er, it's control-H (^M) not control-D (^D) that erases. Control-D is eof. Get outa your GUI!
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!
This article brings up a point I have been thinking about for a long time: The OSS/FS community is losing sight of the trees for the forest with regard to software patentability.
We need to fight the patent war on two fronts - the first front: Lobby to make software patents more difficult to obtain.
And the second front, equally important: Until the rules change in our favor, we need to build up a portfolio of patents, to share and trade with our friends (which anyone in business will tell you is the true purpose of a patent).
Instead of screeching to the heavans, Software Patents Are EEEEEEEEEVIL, the movement would be better served by gaming the system. If a portfolio of patents is what is needed to keep Free Software Free, then so be it - put our minds to making the application and examination system as easy as possible, and assign patents to some organization (a role that would be well served by FSF if they could stop their jihad.
For the record, I do not think that software patents are intrinsically evil. I believe in my heart-of-hearts that algorithms are just as much an invention as a better mousetrap, and I disagree with the article author's assertion that the copyright protection granted to an implementation is sufficient protection for this inventive process.
Plus, you forget that one of the Principles of Free Software, transparency, is fundament in the patent process. The wisdom of the patent system is, In exchange for exclusive right-to-use on your invention, for a limited time, you must fully disclose that same invention.
I am seriously concerned that the patent process may suffer the same slow creep in the meaning of limited time that has happened surrounding copyright, but that is a separate problem for another posting.
How does the Slashdot Effect happen given that no slashdotters ever RTFA?
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
It seems (on a very high level) the Lawyer has just found a new market. Look at the small effort he puts forth and all the income it generates for his firm. And he admits, the patents can be fought over later in the courts...more legal fees for him!! If I were your CEO I would feel a lot like the "SUCKER" in the old Bugs Bunny cartoons. I'm sure there is *some* truth to his position, but I find it bad business to go for the "monopoly" brass ring. Its sad when our CEOs go for these get rich quick schemes. just shows you Lawyers and CEOs are greedy SOBs.
-- www.globaltics.net
Political discussion for a new world
Comment removed based on user account deletion
Remember, due to the concept of sovereign immunity you can't sue the government unless they say you can.
(Unless, you sue for injunctive relief claiming that the action is unConsitutional, and, after Eldred, I won't hold your breath there.)
Here's the thing. I place more importance on having the laws of my country reflect the wishes of myself and my fellow citizens, than I do on making it easy for you to come over here and engage in commerce.
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.
Since we receive a bonus of $8000 per patent, if all goes well we'll share well over $150,000. And there seems no reason we can't keep this game up indefinitely. We should be able to manage around 50 a year, and this nice little earner will see the mortgage paid off in no time.
Now I think that's interesting... This comes from a software engineer, not from the lawyer. Most developers (and presumably the one from the article too) despise this whole mess, yet this guy is being "gently persuaded" by his employer to play the game.
I'd rather not find myself in such a situation, for it's easy to say what I am going to say without having to actually face it. But I'd like to believe that I can be part of the solution and not of the problem; that I can be brave enough to stand by my beliefs and refuse to be part of something like this and still manage to pay my bills.
The revolution will not be televised.
The real difference between software and hardware patents is the time taken to bring it to market. If you invent a mechanical device, if you want to market it, you need to find some way to mass produce it. Unless you are independantly wealthy, that means finding someone who owns a manufactuting plant or two, and getting them to make the device for you. This means that you have to let somebody into your confidence. After you've gone around having meetings with ten or twenty manufacturers, there's ten or twenty people who know a good deal about your invention. You need a patent to ensure that they can't just start ripping off your invention without cutting you in.
Software, on the other hand, as intangible data, is dead easy to replicate and distribute. Put up a website, buy a bit of bandwidth - and nowadays, setup a torrent, and bingo - the equivelant of mechanical "manufacture and distribution". You don't need a patent to protect you while you struggle to manufacture your software and bring it to market.
Just because you're paranoid doesn't mean there isn't an invisible demon about to eat your face
... 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.
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
Trade deal a free kick for US software racketeers
Don't blame M$, Bill Clinton or anybody else... the real problem is deeply routed in the definition of a corporation.
You see, some coporate lawyers in the late 19thC realized that they could make a lot more money if a corporation had the rights of a person, and the supreme court agreed they were, with all the rights and privileges there-of.
Now a coporation is a 'legal' person whose sole purpose is to make money for the shareholders. The CEO and board are legally bound to do so. Unfortunately, since corporations aren't real people, they don't have real morals... other than what will make $$$ for shareholders. Because shareholders aren't liable for the actions of corportions, they don't CARE how the corporation makes money on their investment.
That's the root of the problem.
Every corporation is in a free-fall race to the bottom to out-compete it's rivals and make 7% growth in profits. While that level of competition has many obvious good points, it has also created some terrible problems.
Once one corporation 'buys' a law (such as software patents), then everyone in the industry has to start using them or die. You don't even have to buy a law... if breaking the law and paying the fine (and paying a nice PR firm to make you look shiny) is cost effective, then that's what you HAVE to do if you're going to raise your stock higher than your rivals.
CEOs and lawyers are not all trolls, they are just cogs in a machine. Corporations have bought off politions all over the world, PR firms, marketers... all so that they can bend and create rules to make more $$$. As soon as one nasty little troll does it... they all have to. If they don't, well, only the fittest survive.
The solution?
We have to unravel the legal framework that has come to define what corporations are. Exactly how to do this???? Well, you tell me =)
Like all pain, suffering is a signal that something isn't right
Reading about the abuses of patents really makes my blood boil, but at the same time it is comforting to know that economists are starting to react against software patents.
The economic papers (and probably many others) " Sequential Innovation, Patents, and Imitation" and " An Empirical Look at Software Patents" articulate in economic terms why software patents don't work.
I think that most economists believe that monopolies are bad and competition is good. I think that the more the economic viewpoint like those mentioned in the papers above start to have stronger acceptance amongst economists, then these viewpoints will start to hit the main stream press such as the Sydney Morning Herald (as a main stream newspaper in Australia). Hopefully, by this point, these viewpoints would start to influence government policy.
Geeks got on to the problem of software patents early. But the "geeky" point of view is often overlooked by governments. Economists are much more respected in government and probably can articulate an argument against software patents that probably will not be be overlooked. I'm looking from the perspective in Australia, I don't know how politics works in other parts of the world. But I hope that common sense will prevail.
Yet another ironic recursive statement.
Good grief! you're arguing for the exact reverse of that which is right, just and equitable. Algorithms are mental processes, mathematical ideas which when enacted in software cost next to nothing to manufacture and distribute. To use the patent system to exclude others from even using them is an assault on the very foundations of natural justice, not to mention economically unjustifiable. No-one ever sold a bare algorithm in a shrink-wrapped box - in case you hadn't noticed, each saleable software product is likely to contain many, many algorithms and ideas, and for that reason and others it is appropriately protected by copyright.
I don't think I really care whether the chemical companies consider patents on their expensive to build and operate production processes to be crazy or not - it's up to them. I do however think your idea of allowing ideas in mathematics and computer science to be patentable to be both crazy and evil.
I have never committed a crime on slashdot before, but I shall do so now, by manufacturing and distributing a patented invention:
echo -n $'__________\r'
for ((i=0;i10;i++))
do echo -n "#"
sleep 1
done
echo
The patented progress bar, enacted in the shell in a few lines and all protestations that this one is trivial and should have been excluded by the patent office are meaningless unless you can describe specific criteria that the patent office bureaucrats can follow to allow them to discriminate. The RSA algorithm is just as trivial and yet I have heard many people mistakenly claim that it deserved a patent for it's originality and cleverness - but that cleverness was all in the maths - the idea, not the algorithmic expression of it and so a justification of patentability of software ideas is a justification of patentability of mathematics. An outrageous position.
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.
Settling on an international standard that is mutually agreed upon strengthens the companies within those nations because they don't have to cope with several sets of rules. Like the standardization on the Euro, it reduces complexity and ultimately is a good thing.
Sure, it helps the rich and powerful stay that way, keeps the small and weak from upsetting the apple cart, and assures that the status quo ante favors those already on the top of the heap.
Grrrrreat.
For my part, I think that a little anarchy is a good thing, for those who love freedom. It was the early "standardization" of the Chinese nation, united under the uniform rule of one Emperor, united under one authority, that caused the eventual stagnation of their culture. Similarly, the more "uniform" power and authority became in the Roman Empire, the more oppressive and rotten it became.
Voluntary standards, i.e., those that can be disregarded, are good. Involuntary standards, i.e. those that are backed up with bayonets, prisons, and all the powers of the modern State, are less good, particularly when their effect is to concentrate wealth and power in the hands of a few.
Sorry, this isn't a good thing from my point of view.
I am personally co-author of several patents where we took competitor patents as prior-art and created new patents with claims that anticipate competitor direction. You end up just expanding the independent claims to make them novel (the part you add is the anticipatory part). Of course, you can't use the invention yourself, because you'd be infringing the competitors patent. However, the competitor cannot practice the new patent either, potentially blocking their advance. They may need to licence from you in order to advance their art. Or, trade off licencing with other patents in their portfolio/ That's how it works. It's all legit, and a good way to maintain/gain/protect a competitive advantage. You can slag patents all you want, and yes there are BIG problems in the system, but, you need to play the game to not get squashed.