RMS On How To Fight Software Patents

rimberg writes "Richard M. Stallman has a article on NewsForge talking about ways to fight software patents. It mentions the Public Patent Foundation (and why it's a good idea), but argues that fighting patents one by one will never eliminate the danger of software patents, any more than swatting mosquitoes will eliminate malaria." (Newsforge, like Slashdot, is part of OSTG.)

Comments

I agree with the article

[Anonymous Coward]

Even though I haven't read it.

Re:I agree with the article

[Anonymous Coward]

Also seriously insightful.

RMS wrote (or had EM write) the GPL at a time that I and many other techies thought it was just a bunch of lawyering interfering with code fragments we were just posting on usenet with no copyright/license info. Now the GPL probably helped Linux beat BSD (since companies wouldn't have shared as much if the GPL didn't encourage them to), and may be important to protecting Linux survive.

RMS wrote The Right To Read back in 1997 at a time when DRM was a relatively new technology, and I dismissed him as being paranoid again. Note this was before the DMCA (1998). Long after, when the e-book DRM issues started I remembered his article. Now in the day of the increasing RIAA and MPAA presence, his article is more scarry than ludicrous.

If I were to read this article, I'm sure I'd think he's paranoid again; only to once again see 5 years later that he was actually just years ahead of me again.

It's very easy, actually.

[Pig Hogger]

Just make sure your legislator aren't bought by big croporations in the first place.

This involves watching public affairs and politics closely, however, not an easy thing to do now that croporations have managed to make democracy look bad during the last 20-25 years...

Re:It's very easy, actually.

[flossie]

Just make sure your legislator aren't bought by big croporations in the first place.

Even that isn't really enough. Many of the people who will be voting on this don't really understand the issue. Furthermore, the people who are pushing for software patents are being very deceptive. I have had correspondence with politicians who seem to honestly believe that they are voting for restrictions on software patentability when they are doing no such thing.

The important thing is to educate the politicians. Make them understand why the issue is so important and make them understand what the legislation before them really says.

A great battle was won when the European Parliament amended the Commission's directive, but there is still a lot more to do if we are to see final victory.

Get writing!

Re:It's very easy, actually.

[Anonymous Coward]

Of course you don't live in a democracy. Which is one of the biggest problem when 95% of a countries population does not know the form of government they are living under.

BTW if you live in America you live in a REPUBLIC, if we lived in a democracy we would directly elect the president.

Re:It's very easy, actually.

[smittyoneeach]

The important thing is to educate the politicians.

More important still is to educate the electorate to vote for educated politicians.
A younger me thought politicians were the horse, and the electorate the cart.
We do far too little to promote leadership of any kind in _any_ party, as evidenced by the lack of any substantial debate from anyone in the US presidential farc^H^H^H^Helection.

Re:It's very easy, actually.

[Gentlewhisper]

"In a *real* democracy, you wouldn't need to elect a president. The citizens would vote on the issues directly, just as the ancient Athenians did."

Don't know if there are any anime fans here, but if you want Kino's Journey there was an episode that is exactly like this. So people all vote on issues, and there are disagreements, and eventually, what did they do?

They start voting to have the minority executed.

Eventually there is only a couple and a man left, and the couple voted to have that man killed. Then one fine day the wife died of illness, because there are no doctors left (they killed them all).

Finally, the remaining man shot himself.

Not a pretty end for the US of A, I'd say stick with the present system however bad it is.

Re:It's very easy, actually.

[autophile]

Just make sure your legislator aren't bought by big croporations in the first place.

Craporations?
Copro-ations?
Crop-rotations?
Crap-of-nations?

Score -1, misspelling and (bonus!) grammar error.
Score +1, but the mispelling is so funny.

--Rob

Re:It's very easy, actually.

[the_meager]

This is one of the ways that open democracies fail. The U.S. was never meant to be a democracy but a [Limited] Republic with democratically elected officials.

Alot of people like to blaim politicians being bought out on the free market (often trying to use the term capitalism, as if they are one and the same). The problem of becoming too democratic is that the most powerful few (tyrrany of the minority/of the wealthy elite) and those of the greatest numbers (tyrrany of the majority) can influence the law to their own will.

If we fought to maintain our Limited Republic more dilligantly, we would not be set up in a system where it is easy to sway the legislature in your favor. When making new laws is just short of impossible, and government does not have the "right" to set in place new legislature at will, you do not see politicians being bought out...

I'm not specifically saying you were doing this, Pig_Hogger, but alot of people here at slashdot need to stop pointing at corporations and saying that capitalism (not to be confused with a free market... since corporations do not naturally exist in a free market) is the problem, totally ignoring the unfolding of our government with the decrease in trust and the rise in illegitimacy issues.

Democracy has been making democracy look bad for the past few thousand years, that's why people as far back as Plato have been warning us of the difficulties.

I'll give a few quotes...

"We are now forming a Republican form of government. Real Liberty is not found in the extremes of democracy, but in moderate governments. If we incline too much to democracy, we shall soon shoot into a monarchy, or some other form of dictatorship."
--Alexander Hamilton

# "Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide."
-- John Adams, 1814

"The adoption of Democracy as a form of Government by all European nations is fatal to good Government, to liberty, to law and order, to respect for authority, and to religion, and must eventually produce a state of chaos from which a new world tyranny will arise."
-- Duke of Northumberland, 1931

"A democracy cannot exist as a permanent form of government. It can only exist until a majority of voters discover that they can vote themselves largess out of the public treasury."
-- Alexander Tytler

"The one pervading evil of democracy is the tyranny of the majority, or rather of that party, not always the majority, that succeeds, by force or fraud, in carrying elections."
-- Lord Acton

I'll stop before I get even more carried away...

Re:It's very easy, actually.

[IgnoramusMaximus]

Canada (which is in America, by the way) is a -spit- monarchy.

Parlimentary monarchy. A wee difference between the Queen being an all-powerful tyrant and a mere figurehead. For your information, we happen to have 4 major political parties and a few small ones. Minority governments are possible (we have one presently). Although people always complain, I take this system any night and day over the "one two-headed horse race" you got going over there since ... well ... basically day one. Which seemed to bother noone, only until recently, when it is became apparent that both of these entrenched choices are getting desperately lame. USA was extremely fortunate for most of its history that this Democrat/Republican farce did not go bad much earlier.

Re:It's very easy, actually.

[nickco3]

if you live in America you live in a REPUBLIC, if we lived in a democracy we would directly elect the president.

It's only an either-or proposition when you're playing Civilization. Here in the real world we aren't restricted to a single adjective when describing governmental systems. The US is a democratic republic; the UK is democratic, but not a republic; China is not democratic, but it is a republic.

In the ancient world, the citizens of a democracy voted on laws directly. No one practises this anymore, pretty much every one of these early democracies ended by voting all their powers to a charismatic tyrant. The Ancients Greeks even had a word for it: the Kyklos.

What the Western world uses today was called a mixed constitution in the ancient world. They have an element of tyranny (the head of state), an element of aristocracy (the parliament, or senate) and an element of ordinary people (regular elections, not to often).

Re:It's very easy, actually.

[This is outrageous!]

In the ancient world, the citizens of a democracy voted on laws directly. No one practises this anymore

Hmmm...

You might want to read about Direct Democracy in Switzerland. Why does it seem so inconceivable here? Well, (from the second link there), "the extensive choice of media play a decisive role in ensuring the proper functioning of this particular form of State."

Re: It's very easy, actually.

[Corvus9]

While our neighbors to the north may not approve of our politics, I'd challenge them to point to one major event in history where Canada has taken leadership on the world stage.

If by "leadership" you mean invading foreign countries, I concede American dominance here.

Otherwise, there is Canada's efforts for a peaceful resolution to the Suez Crisis, for which Prime Minister Pearson won a Nobel prize.

Canada has played a role far out of proportion to its population in U.N. peacekeeping operations, and a major role in the International War Crimes Tribunal and Rome Statute, which the U.S. has largely ignored. Canada also provided significant support to the Rwandan and Balkan Genocide tribunals. Other countries' support has dwindled after these events are no longer on the front pages.

Canada was one of few countries in the world willing to accept the Boat People refugees in the 1970s, and campaigns for the rights of refugees to this day.

Canada was one of the first western countries to recognize the People's Republic of China, this under strong U.S. condemnation.

Canada is also the major supporter of the international land mines ban, also against the wishes of its allies, and a decade before Princess Di jumped aboard.

Da Bomb.

[Anonymous Coward]

"but argues that fighting patents one by one will never eliminate the danger of software patents"

May I helpfully suggest tactical nukes?

Re:Da Bomb.

[irokitt]

Do you mean Gnukes?

Masquitoes

[panth0r]

That's what I've been telling everybody, you have to put all the masquitoes in a jar and then through that giant jar in a fire.

Obscure Gauntlet video-game reference

[deputydink]

To make a part of the castle safe, you've got to do more than kill the monsters as they appear -- you have to wipe out the generator that produces them.

LOL... See, this is the kind of weird shit that stallman says that makes people outside the tech industry go:
"What the fuck is that guy talking about?".

Geek Analogy

[Anonymous Coward]

To make a part of the castle safe, you've got to do more than kill the monsters as they appear -- you have to wipe out the generator that produces them.

But you'd get a lot more experience points if you leave the generator running and ambush the monsters one-by-one as they emerge.

And this Stallman guy thinks he's a geek. Sheesh!

Software patents

[Lank]

are what happens when our legislators make laws about things they know nothing about. It seems utterly ridiculous to me that someone could claim that, without a doubt, they are the first person to have come up with a certain algorithm. I mean, only brilliant people actually come up with anything that's worth patenting, yet somehow some lines of code, a for loop or some such stupid thing, ends up getting patented which sums up ranges of numbers. It's beyond me why any software patent exists unless it is a truly outstanding piece of work (i.e. cryptography algorithms, non-obvious sorting algorithms, etc).

Re:Software patents

[Halo1]

are what happens when our legislators make laws about things they know nothing about

Actually, in the US they are what happened because the legislators did not make any laws about them. Their introduction happened entirely through case law, i.e. court decisions.

a for loop or some such stupid thing, ends up getting patented which sums up ranges of numbers.

Pretty much all software patents are about summing up ranges of numbers. After all, all a computer can do is mathematics, and you can present any mathematical function as a transformation of one bunch of numbers to another bunch of numbers.

Some guy even proved using lambda calculus that because of this property, several assumptions about the patent system are in contradiction with each other when applied to computer programs.

Try and patent the Turing machine

[danpat]

Perhaps this would solve the problem once and for all. I see two outcomes:

1. The patent is accepted and you can invalidate all patents that follow (as they cover ground your patent now owns). No more software patents!
2. The patent is rejected because of prior art. Subsequently, all software patents that follow that piece of prior art should also be invalidated. No more software patents!

The only thing you have to prove is that your patent for the turing machine describes all other possible software patents....

Re:Try and patent the Turing machine

[Anonymous Coward]

This isn't that insightful. We examiners already know that "a computer" reads on every software patent.

The problem is that the attorneys and appeals courts couldn't give a rat's ass about that fact. If you look at first-attempt applications, you'll find claims for the very same limitations for stuff like "a computer with computer readable medium, said medium comprising executable instructions to perform a method comprising:" and "a data signal embodied in a carrier wave, said data signal initiating a computing device to execut a method comprising:" and similar bullshit.

The examiners issue patents according to the existing law and previously decided court cases with the idea that having their work dragged through the appeals courts is a Bad Thing. If you don't like software patents, you'll have to fight it out between the attorneys and the appeals courts. The examiners are just trying to do their job the "right" way, and the "right" way is decided by judges who don't know why solving one NP-Complete problem in polynomial time would by historic.

Re:Try and patent the Turing machine

[Anonymous Coward]

Then what is the point of having patent examiners? If you are going to leave it to the courts to decide if a claim has merit, there is not point in having someone pronounce on its validity beforehand.

I really don't know wtf you're trying to say. Because many hundreds of thousands of applications are defeated by the examiners. I don't even know if we're speaking to the same subject...

Judges should not need to know the technical details. They should be able to rely on qualified examiners to do that bit of the work, leaving them to sort out legal arguments between opposing parties.

I'm going to presume from this that you're unfamiliar with how the appeals process works. On one side, you have an examiner who already believes that the application is retarded and is granted less than half a work day to compile a 25-75 page paper explaining so with as much detail as possible. On the other side, you potentially have a team of attorneys who are eager to take advantage of the fact that the judge doesn't know an "addressable register" from an "on-die flip-flop circuit".

If you don't want judges who know the technical details, that's fine with me - just don't complain about silly patents issued after appeals. The fact that it went to appeals means that the examiner does not believe it merits a patent. Unfortunately, more often than not, appeals are used to weasle a patent out of the law, not to prove the invention deserves a patent for being innovative.

Re:Try and patent the Turing machine

[dmaxwell]

I really don't know wtf you're trying to say. Because many hundreds of thousands of applications are defeated by the examiners. I don't even know if we're speaking to the same subject...

One-click (cough!) One-click (cough! cough!) Tab key surfing (hack! wheeze!) Double clicking on a portable device (retch! spitooey!)

For every bullshit application that gets defeated, 100 more slip through. Since you claim to be a bonafide software patent examiner, let me ask the $100 dollar question: WTF are you people smoking and where can I get some of it because it must be really freaking good?

Nothing to see here

[Anonymous Coward]

Nothing this brief note says is unique to software. Stallman might as well be arguing that any time you design a machine, you might infringe someone's mechanical patent without knowing.

The patent system didn't cause the collapse of the entire Industrial Revolution due to patent infringement, so it seems more than a bit like crying wolf to assume it will be any more harmful with software.

Other than that point, the article is empty of content other than "Software patents are bad; we must have zero of them". No useful tips on how to go about achieving that goal, as the summary promises.

Re:Nothing to see here

[flossie]

Nothing this brief note says is unique to software. Stallman might as well be arguing that any time you design a machine, you might infringe someone's mechanical patent without knowing.

There is, however, a very great difference between designing and building a car and writing software. Designing a car requires some fairly expensive machinary and requires a lot of legal hoop-jumping to get it certified as safe. It is very expensive for companies to launch a new range of cars and the patent costs are relatively small in comparison to some of the more capital intensive parts of the project.

With software, there is currently no such barrier to entry. Software can be, and is, written by hobbyists and very small companies as well as the software giants. The introduction of software patents would effectively remove the ability of some of the most innovative workers to compete.

Re:Nothing to see here

[belmolis]

While RMS isn't very explicit about it in the Newsforge piece, one distinction between software patents and mechanical patents to which he alludes is that, arguably, a piece of software of any complexity is likely to involve many more potentially patentable components than a comparable mechanical device. To the extent this is true, it means that it is much more difficult to know when one is infringing a patent when writing software and that it would be much more difficult to set up a system for paying royalties.

It's true that patents don't seem to have prevented the Industrial Revolution, but there may be some critical differences. One is that, it seems to me, patents didn't come to be widely used until a great many fundamentals were already in the public domain. That meant that everybody had a large base of ideas that they were free to work with. Where very basic ideas were patented, those patents did indeed pose a danger to progress. An example is the AT&T patent on the transistor, which the US government forced AT&T effectively to give up precisely because it was such a basic thing that it would have given AT&T a stranglehold on the semiconductor industry.

The other factor is that for much of the Industrial Revolution there were generally fairly large costs and/or specialized skills needed to implement a new idea, and the means of communication were relatively slow. As a result, the duration of a patent was relatively short in comparison to the time needed for ideas to diffuse. In contrast, implementing a new idea in software costs very little and requires no skills beyond those of the average programmer, and communication is very fast. As a result, people can adopt a new idea very quickly. The time for ideas to diffuse is small in relationship to the duration of patent, so patents become a bottleneck.

If this latter idea is correct, it means that the problems with software patents should arise in other areas in which costs of adoption are low and communication rapid. I wonder if genetic technology is not coming to be similar to software in this respect.

Re:Nothing to see here

[Anonymous Coward]

The patent system didn't cause the collapse of the entire Industrial Revolution due to patent infringement

But it may have concentrated power into the hands of very few and slowed it down, and changed its direction to favour the interests of the establishment of the time.

As a mechanical engineer, I detest all patents, not just software ones. You wouldn't _believe_ the stuff engineers aren't allowed to do because of patents, particularly sealed patents (patents that have been indefinitely extended and simultaneously removed in whole or in part from public records for reasons of "national security" - (i.e. corporate cronies requested it) This is intensely irritating - the patent still applies, so you can still be stopped from creating whatever it is you have rediscovered, but unlike with an ordinary patent, you don't know when/if it'll expire (typically when a citizen in another country independently reinvents it and _doesn't_ also keep it secret), and because there's little public record, people think you're being paranoid if you try to fight it.)

Re:Nothing to see here

[Waffle Iron]

Nothing this brief note says is unique to software.

Except that every time he mentions the word "patent", it is either specified as "software patent", or used in a context that could only mean "software patent".

The patent system didn't cause the collapse of the entire Industrial Revolution due to patent infringement, so it seems more than a bit like crying wolf to assume it will be any more harmful with software.

During much of the Industrial Revolution, there were most likely no more that a few dozen patents per year issued that could potentially affect any particular product. It took over a century to issue the first 1 million patents.

Since software patents are typically very broad, overlapping and non-novel, each one can have a much larger impact than some patent on an improved shoelace. For the shoelace, only a handful of shoe designers have to worry about the patent. In the software case, every single one of the millions of software developers worldwide have to worry.

If RMS's figure is right and 100,000 software patents issue each year, and you assume that a typical patent has about 10 claims, then each and every day you need to check your entire codebase against more than 2700 additional new claims. That's an incredible burden on the software industry; one that has not been proven to be offset by any gains provided by software patents. The worth of software patents is especially questionable given that most of the major innovations in the software field took place either before software patents were allowed or were introduced as free public standards.

Re:Nothing to see here

[Anonymous Coward]

Your terminology is wrong or confusing: Actually, a "sealed patent" means the letter granting the monopoly was marked with official stamp [i.e. sealed] as an open [i.e. patent] letter. The final step in getting a patent is often called "sealing" it.

Nonetheless, you are RIGHT, such hidden pseudopatents do exist - words like "secretized" and "classified" and "patent" will throw up many google hits, and many conspiracy theorists and free energy nuts acting very, very paranoid.

Usually the secrecy is imposed when the patent is filed and lasts until the patent is granted. Normal businesses generally want their patent granted as soon as possible after filing - but have a look some time at the defense forces - they sometimes act to extend the period between filing and granting for a _Very_ long time. Note that while the patent is filed but not granted (i.e. "pat. pending.", they can easily obtain an injunction to prevent you making whatever it is you want to make.

This is of course purely for National Security. Ahem.

The moral of the story is: if your invention challenges the hegemony of the powers that be, _don't_ seek a patent for it...

Re:Nothing to see here

[Wolfbone]

Patents have never before been applied to works that are immediate realisations of pencil and paper work and that don't have to take into account the realities of the physical world. If machines and other artefacts could be built like programmes can, the world would look very strange, elaborate and exotic today - probably quite beautiful - unless in the Industrial Revolution of this parallel world, patents had taken hold - then it would probably look more like Basingstoke, Croydon or Slough. ;-)

It seems to me there is a freedom in programming that is like the freedom in art and that arises from the fact that the full range of abstract mathematics is available to the programmer, rather than just that which will work in the real world and because there is an immediacy of implementation and an intimacy between idea and expression like that which there is between composer and piano keyboard. Software patents are generally directed toward the utilitarian aspects of programming - it's fundamental techniques and ideas, yet strangely it is obvious to everyone that such kinds of patents if applied to literature or cinematography or music would have only a detrimental effect.

It is interesting to wonder if one day artists (or publishers of art) might foolishly decide to embark on a patent land grab as is occurring in the software world. If you think that is not possible because of the technicity/usefulness requirements of patents, consider the Pollock techniques of splatter painting at a certain constant average fractal dimension, or the Da Vinci low frequency technique of causing a sense of elusivity and enigma. (Check out Semir Zeki's book; "Inner Vision: An Exploration of Art and the Brain" and much other work on the science of perception). Recent work in analysis of music too has resulted in (among other things) researchers claiming to have found techniques for generating 'hit songs' automatically. It can only be a matter of time before one cannot engage in any activity at all without infringing someone else's exclusive right to use the techniques associated with it. :)

Re:Nothing to see here

[Halo1]

Patents have never before been applied to works that are immediate realisations of pencil and paper work

The European Patent Office wants to change that. From page 16 of this recent decision of the Board of Appeal of the EPO):

The Board is aware that its comparatively broad interpretation of the term "invention" in Article 52(1) EPC will include activities which are so familiar that their technical character tends to be overlooked, such as the act of writing using pen and paper.

Anyone wants to bet how long it'll still take until they start granting patents for pen and paper-implemented inventions?

Patent Generators

[yintercept]

The fact that the patent generation is separate from invention and discovery is one of the main things that will destroy the machine. Personally, I think the solution to the patent process is not to stage a revolution against property rights but to continue to drive the issue that the system for issuing titles for intellectual property is out of kilter.

Fighting and pointing out the absurdities of patent abuse are a very good first step.

BTW, I suspect the typical car has more than 300 patents involved in its creation and manufacture. However, the shear number of patents developers face is a good method to show the problems faced by small businesses...as it is next to impossible to design any idea without touching on a patent of some sort.

Re:Patent Generators

[Alsee]

I think the solution to the patent process is not to stage a revolution against property rights

Congratulations on defending "property rights" for mental processes.

The "revolution" here is not in opposing software patents. The "revolution" was when the dumb-ass US reversed it's own proper and well established rules and violated well established global patent rules to extend patents to software in the 80's. Virtually every patent law in the world has/had rules prohibiting patents on math and thought processes. Prior to abandoning the Mental Steps Doctrine the US patent office catagorically, consistantly, and properly ruled that software was not an invention and was never patentable.

Physical objects can be inventions. Pysical processes can be inventions. All software is in fact a math function. Math is not and cannot be an invention. Software does not require a computer - any software can (slowly) be executed through pure thought. A sequence of pure thought is not and cannot be an invention.

Lets say I select some convient software patent and actually preform a demonstration executing that algorithm mentally. I defy you to either explain how thoughts can be prohibited by law and infringing, or to explain how that non-infringing non-patentable non-invention magically becomes a patentable invention if I take the blindingly obvious step of using an ordinary computer merely to speed up that exact same calculation.

If you cannot explain at least one of those two things then you have absolutely way to claim any validity for software patents. If preforming the software mentally cannot be a patentable invention, and the obvious step of speeding it up with ordinary computer does not make it an invention, then no software is a patentable invention.

You own the copyright on software and you own the patent on an invention. There's nothing "anti-property" about that. I'm simply saying software is not an invention. There is no overlap, therw is never any double coverage.

The US screwed up when it reversed its patent rules. Not only is patenting software fundamentally broken, not only is patenting software harmful, but if software patents start getting enforced to any non-trivial extent the US will suffer an economic disaster. Not only will software development flee the country (likely to the EU), but all sorts of foriegn industries will outcompete and crush US industries because huge quantities of useful or even critical software will be infringing and prohibited in the US.

-

Re:in case it gets slashdotted

[Bombcar]

You bastard! Copying copyrighted works into Slashdot! Have you no shame! Look it says:

Copyright 2004 Richard Stallman.

Fool.

Hmmm.... wait..... Verbatim copying and distribution of this entire article are permitted worldwide without royalty in any medium provided this notice is preserved.

Uh, hmm..... er.... cannot comprehend this use of copyright...

[corporate head explodes]

Google to the rescue

[Lank]

All this talk about software patents made me do a little digging, and I found a (pretty good) site relating to them:
http://www.bitlaw.com/software-patent/

Ask the USPTO

[Anonymous Coward]

There are no shortage of examiners who think patenting software is a bad idea. The problem is that examiners do not have the final say in what is or is not granted a patent.

All patent attorneys know that they can take an application to the board of appeals (or higher) if they want to bother. The only reason they wouldn't is if the examiner builds an airtight case that convinces the attorney that it would be a waste of his time to try. The attorneys know that the people who sit on the board of appeals are patent law experts but not software experts.

If you want to stop software patents, you need to lay off the examiners (they agree with half the stuff said on Slashdot and the other half isn't even close to accurate) and focus on the patent attorneys and the appeal process. Any examiner who has been at the USPTO has issued patents for ideas they believe they have rejected but the board doesn't agree that "simultaneous" means the same thing as "doing two things at once" or some garbage like that. So the patent gets issued and from a legal standpoint, it's a perfectly valid patent. The examiner hates to do it, but the examiner doesn't have a choice.

If you want to fix software patents, focus on the attorneys and the appeal process. The examiners are just trying to do their job without being burnt out by the moronic arguments they deal with on a daily basis.

Re:Ask the USPTO

[Anonymous Coward]

If you want to stop software patents, you need to lay off the examiners

I do not think it means what you think it means. :)

Re:Ask the USPTO

[maxpublic]

The examiners, as much as anyone, are in the best position to do something about it.

Indeed. The most effective thing they could do is allow anyone to patent just about any absurdity, then sit back and watch as the intentionally produced chaos starts rippling back and forth throughout the system. Done right and with enough examiners the entire system is sure to implode, probably spectacularly, in a relatively short amount of time.

If what you're looking for is a way to hopelessly bollix the system and force a complete redesign then this sort of sabotage is the only weapon effective enough to do the job. Anything else will be just a 'fix' to the current system, a fix which undoubtedly be in favor of those already at the top of the economic pyramid.

We point to patents and say "what the hell are those examiners thinking???" when, in fact, a more appropriate response might be "looks like those examiners just pulled another brick from the wall (snicker)".

Max

Make more prior art

[G4from128k]

If more people published more good ideas in the public domain, businesses would have less room for silly software patents. This publication process would need to work with, educate, and support patent examiners -- making it easier for them to deny the more egregious claims before they are issued. And if thousands OSS fanatics can't come up with the idea to keep it out of the clutches of patent-happy companies, then perhaps it was sufficiently innovative and original that it merits a financial rewards of a patent.

Re:Make more prior art

[Anonymous Coward]

At the very least, PUT A DATE ON YOUR STUFF. If you have webpages from college where you explain what you did for your senior project, make sure it is clearly dated. If you have a PDF of a research paper you wrote, freaking date the thing on the first page. If you maintain a FAQ for a ubiquitous software concept, keep a "updated on: " line in each section.

You won't know it when you're cited in an examiner's rejection of a patent, but I promise you that many times an examiner finds a great piece of art on the internet that they would love to use except it isn't dated. There are mountains of people's research papers in PDF form that are on the internet but do not clearly display a date. If it doesn't have a date, it's useless to the examiner.

This is the number one thing that "everybody" can do to help prevent questionable patents and it only takes a tiny bit of time.

Re:Make more prior art

[thogard]

Years ago a friend told me to keep a patent idea book. He said get a notebook with printed page numbers and at the start of each entry write the date, the idea and draw a line. If you want to add to it, use the next entry location and never ever update an existing entry. That book has killed a few bad patents so far.

That friend has several patents on the best selling chip of the time (Am/FM radio chip). He also has a patent on using morse code to talk to a device even though it had been patented nearly a century before.

Derailing the train

[Anonymous Coward]

It is also important to take a two pronged defense/attack on software patents. Giving the analytical arguments against patents, educating developers, and trying to give businesses a real business case why patents neither protects them, nor helps them competitively is the first approach, and a very important one. The second approach is the quantative and qualitative approach giving real figures and projected outcomes. A scientific approach. Here in Aus we are trying to set up a patents watch, now that we are locked into US style patents legislation. This means that in a year, or two years, we have real data on the amounts of trivial patents being attempted, and can realistically speculate on the impact of suh patents if they had been granted. Plus we get the open source community working directly with the people who need help in filtering patents.

A good eg of what is current in Australian patents:
> Australian Application Number 2004205327
> Title Programming interface for a computer platform

Through this we can hopefully prove that patents should simply not apply to software methods. It makes no sense, stifles innovation, and is an anti-competitive too of the most scary dimensions :( We can't convince them just with argument, we need to give them proof they can't argue against.

Re:Derailing the train

[coast99]

Why not try the opposite ? Instead of fighting software patents, the OSS community should establish an organization which patents all new ideas in Linux, Mozilla etc. There are certainly many new ideas in free software and the inventor could patent them while at the same time licensing the SW as free. In case the evil empire uses its software patents the OSS would have a cache of patents to fight back ...

Re:Derailing the train

[pipka]

Hi, this is the original poster again, forgot to login last time. The open source community simply does not have the money or time to play this game, plus we will simply never win. Some of these companies hire teams and teams of people to deal with patents, and they pay developers an incentive bonus to give the company lawyers juice to work with. If we play that game, we would need to play it completely, and we simply can't. The best way to play this is to change the rules. Software patents make no sense. Patenting an idea in software is just as stupid as patenting the method of applying paint to a canvas in art. We need to change the precedent otherwise we will continually be spending our time putting out flames, and spending less time creating the kick ass software as we've been doing. Software patents threaten competition and those who have unique and good ideas, but, and here is some food for thought, many companies value their public image much more than revenue from something misunderstood like patents. I guess that a big call out to anyone being threatened by patents to be as public about them as possible is another defense. If a big company sued a large open source project for patent infringement, it would more likely backfire on them now than say a year ago. Thanks to the issues inherent in the FTA in Aus, we now have some seriously well educated legislators, who may be able to avert the kinds of disasters seen in the US. One of our biggest strengths in the open source community is our openness and our ability to work together right around the world. Lets band together to bring this out into the light and see it burn when the sunlight of public scrutiny hits it.

Re:Derailing the train

[killjoe]

The main reason that won't happen is the cost. It costs a few thousand dollars to get each patent. Unless you are a business and are planning on suing somebody later it makes no sense to spend that kind of money.

prior art patent busting wiki?

[zogger]

--sounds like a good idea. Make it public enough so that examiners reference it all the time, and make sure they have the URL for it. And send the reference to every patent attorney and politician out there. Making a large repository of prior "thoughts and ideas" might help to mitigate patent frenzy. You could have a sub section where prior art that tends to argue against already issued patents as well. Wiki style is well understood, I would think a lot of developers might drop interesting ideas there just to keep them from getting patented. there's no way to fight industries with boatloads of cash, they are the only ones who can actually apply and get patents by the hundreds, but establishing the prior art is as easy as mashing the "submit" button on your idea, and much cheaper to pull off. Sort of a peer review wiki, concentrating on IP ideas.

Maybe someone with the bandwith and interest can host it, and maybe some legal geeks can write up the mission statement and goals, etc.

Re:prior art patent busting wiki?

[zogger]

IP Ideas magazine, print version, and online version. All ideas copylefted.

Are all patents really evil?

[snakecoder]

I know I will get crucified and I am by no means an expert but I can't see how "One click", which in my view is completely an absurd patent can be held on the same level as the RSA public/private key patent which seems to hold some validity (at least at a gut feeling level)

Re:Are all patents really evil?

[flossie]

I know I will get crucified and I am by no means an expert but I can't see how "One click", which in my view is completely an absurd patent can be held on the same level as the RSA public/private key patent which seems to hold some validity (at least at a gut feeling level)

Public key cryptography might be a really good idea, but that still doesn't mean it deserves a patent. Certainly as things stand in the EU at the moment it cannot be patented because mathematical methods are not "inventions". How long this will be true remains to be seen. of course.

Re:Are all patents really evil?

[hobo2k]

Unfortunately I don't know what the RSA patent you mention actually covers. But I would say that if RSA's patents prevent me from siting down with a 50 year old number theory book and working out my own competing encryption system, then yes it is eeeeevil.

Frankly I still don't understand any of this. Why was it legal to create the JPEG format, which obviously does the same thing (from a user perspective) as GIF, when it was not legal for Barnes and Noble to implement their own version of one-click?

My gut feel is that all software patents are bad because computer science is just too young a field. The government doesn't need to encourage basic research in software, it will happen anyway.

Re:Are all patents really evil?

[Teancum]

I have created ideas that have been "patentable" in software, and in several cases I even had the financial resources available to at least patent the idea for my employer.

The truth is that I deliberatly chose not to do so, and I fail to see how patenting a software idea would have ever made me or my employer even one cent more by going through the process of doing the patent filing. It might be valid to have patents for defensive purposes (to ward off attacks from litigous idiots like SCO) and keep the company from going into the ground due to the system, but it won't be a revenue generator. Certainly our competitors could always find a way around what ever patents we could come up with, so even the exclusivity of the algorithm would not matter, unless we wanted to sink the entire industry like others are doing (again like SCO).

The LZW algorithm is perhaps the classic, and even that was worked around. Had Unisys been forthcoming from the beginning that it had the patent and intended to enforce it, there is no way that the GIF format would have been used at all.

The point here is that as a full-time software developer who almost exclusivly makes my financial income from the creation of totally novel and original software ideas, I don't need software patents and they are much more of a nuscance that anything else, and something done by companies who can't innovate or have run out of fresh ideas. In the time and effort it takes to patent something, I can come up with a dozen or more fresh ideas and implement them in actual software where they are being used.

If somebody else who has encountered the same situation ends up writing almost identical software and came up with the same general concept (I've seen it happen more than once), why not let them try to compete in the marketplace rather than in the courts?

While I would agree that the RSA algorithm does take time, R&D effort, and considerable effort that perhaps should be rewarded somehow, I fail to see how a software patent would even then be useful. Other encryption algorithms can and are being developed using alternative methods, so the absolute value is really in question. That the implementors of a successful algorithm would be the first on the market, have (hopefully) fully debuged software implementing the concept, and using it in practical applications would make that company clearly successful financially, particularly if they sold the software implementations at a reasonable price. The more complex the algorithm, the more they would be able to charge for it simply because it would also be that much harder for a 3rd party to make an independent implementation.

Copyright law, on the other hand, is critical, and just for pure ethical reasons, if you are using somebody's software and claiming it as if your wrote it yourself, that is plagurism at best, and should be protected through existing copyright laws. That the terms of the copyright might be way too long for computer software is another issue, but I would at least like the opportunity to be able to release my stuff knowing I can defend my authorship legally.

BTW, If I were able to directly introduce legislation into the U.S. Congress, I would want to change software copyright to about 20 years. I could even live with 10 years. Life + 70 years makes absolutely no sense to me whatsoever.

Re:in case it gets slashdotted

[Anonymous Coward]

Sigh. Moderators, please *read* before modding up. Geez. This is one of the "post the article text but with a few changes" jobs.

Note the "European Transvestite Parliament" bit? That's not usually what we call them, and although what they may do on their own time is their own business, I know most of them were conventional attire for their sex at parliamentary sessions.

And note also that we are European, we're not likely to give a fuck if some guy does happen to wear a dress on a hot summer's day anyway. Americans have such strange hangups. No, mustn't show even a hint of tit on screen, but people's heads getting blown up is A-OK. Nutters.

I agree with the article-Deep Root.

[Anonymous Coward]

Yes it's insightful to say that RMS is smart. It would be even more insightful to ask ourselves "Why do we treat him the way we do?" then.

Re:I agree with the article-Deep Root.

[Anonymous Coward]

It would be even more insightful to ask ourselves "Why do we treat him the way we do?" then.

I think your parent post answered that.

We treat him as a paranoid nutcase because he sees these trends in intellectual property law about 3-5 years before they affect us users of the system. Since we don't have the same context, we don't understand what he's saying.

For example, he probably wrote The Right to Read back when the DMCA was being drafted; and he probably had some exposure to the debates that were part of its drafting. We, on the other hand, didn't know anything about the DMCA when we first read the article. Without this context it sounded quite paranoid. Only after the DMCA passed as law did the popular media (/.) notice the law, and only after that point did RMS's article make sense.

Re:I agree with the article-Deep Root.

[mewphobia]

RMS, I love how you always start treads as anonymous coward, and reply to them yourself so that we like you more.

It tricked me for years but it was because i wasn't stepping into your shoes. Now I am as paranoid as you, and i can see what you're doing.

Rock on.

Counterattacking the patent system?

[Richard_J_N]

Is it possible to use the patent system against itself, in the same way that the GPL counteracts the principle of copyright using copyright law itself?

For example, a public foundation dedicated to holding patents in the public interest. Anyone with an idea could submit it to them; they would then obtain a patent on it, and license it freely to the public, with the exception of companies who use their patent portfolios offensively.

Also, as an attack against software patents, would it be possible for a free developer to patent their own algorithms/widgets etc, and license it *only* for use in GPL'd software?

Is the above legally possible? There's an obvious problem in that most FOSS developers have neither the time nor the expertise, nor the money to apply for patents, but if an organisation could be formed to do that part, I have no doubt that the intellectual citizens of the world can out-invent the corporations obtaining patents.

[I am personally convinced that patents per se are a very bad thing, in any field of endeavour. They run contrary to the spirit of scientific endeavour, and they create a "tragedy of the commons" on a global scale. They also lead to monopolies. Pragamatically, one might make a special exemption for pharmaceutical patents, on the grounds of the huge investment required up front, but even then, such patents should be unenforceable in the 3rd world on grounds of humanitarian necessity.]

Re:Counterattacking the patent system?

[ShieldW0lf]

For example, a public foundation dedicated to holding patents in the public interest. Anyone with an idea could submit it to them; they would then obtain a patent on it, and license it freely to the public, with the exception of companies who use their patent portfolios offensively.

That wouldn't work, because you can be forced to license your patents out at a reasonable price in court. I can't see a court allowing you to kill a successful rich commercial field of endeavour with your patents in such a way... they'd require them to take it money for use.

Love to be proven wrong, mind...

Re:Counterattacking the patent system?

[killjoe]

"
That wouldn't work, because you can be forced to license your patents out at a reasonable price in court"

The best the court would do is to invalidate your patent. They can't force you to license it let alone for a reasonable price.

Re:Counterattacking the patent system?

[Richard_J_N]

Remember that, to have a patent, the idea must be secret until the patent is applied for; only then is it publishable. So you can't put it on the web right away. Also, the reason I *think* you'd need GPL is that, at least in software, if you offer your patent license free to BSD-licensed software, it can then be taken proprietary (even incorporated into MS software) It sounds to me as though there is a missing link here. We have the programmers with ideas, and we have plenty of people who'd donate money. (I would for a start!). What is needed is a foundation to handle the legal part. (I'm slightly surprised that the FSF isn't doing it already - except that this would then "validate" the idea of software patents?). The aim here would ideally be to totally undo the patent system: if we cannot have a wold without patents, we should extend the "MAD" ("mutually assured destruction") principle so that no company ever dare to use a patent offensively. The organisation (let's call it the Free Patent Foundation for now) would be able to use its large resources to defend, initially just Free Software, and as it manages to gain a portfolio, could expand into other fields. I know plenty of academics who would be delighted to add their ideas, if the process could be simplified to under an hour's work per inventor.

Re:Crisis is the rallying cry of the tyrant

[Anonymous Coward]

Actually, the disaster is already here, at least in the USA- have you _seen_ the state of the US software industry lately? It's nearly all lawsuits now instead of just people writing new code.

The only reason the disaster mightn't get to europe is BECAUSE people like RMS and the thousands of europeans supporting the FFII DON'T "shut the fuck up" and DO work to fight the encroaching evil. And, being normally functioning adult humans for the most part, we can do that part-time and continue to code too, funny enough.

Video game comparisons ?

[CliffEmAll]

You cannot expect to defeat every patent that comes at you, any more than you can expect to kill every monster in a video game

Perhaps I should send this guy a screenshot of a Versalife bathroom ( Deus Ex ) filled with bodies of every killable NPC in the Chinese area. I should really apply this attitude to my current Icewind Dale II game. Those damn shopkeepers and town guards just wanted to cheat me anyway!

Re:in case it gets slashdotted

[Gorath99]

The European Transvestite Parliament voted a year ago to reject software patents conclusively.

*Sigh* RMS isn't that undiplomatic. While AFAICT the rest of the article is a verbatim copy, this is a good reminder of why you shouldn't trust these "in case it gets slashdotted" copies.

Was anyone else confused when they saw "RMS"?

[NotQuiteReal]

Everyone knows that it is Windows Rights Managment Services Right? ;-)

RMS will have to trademark those three letters soon, or cede their use to his favorite software giant.

Any tin-foil hatters out there want to say that MSFT chose those three letters on purpose?

Re:Mosquitos, Malaria, and Bill Gates.

[bit01]

Mean anything?

Yep, it means that Bill Gates is paying the same percentage of his income as a million other concerned citizens. As far as it goes, a good thing and my congratulations to him.

I find it interesting that he really only got started donating to significant non-M$ benefiting causes when he met Melinda. She appears to have been a positive influence.

In any case M$ is still taxing the world $35,000,000,000 per year for about a dozen programs mostly written more than a decade ago with the most complicated bits (the device drivers) being largely written by third parties. That's wrong, the market isn't working and the law needs to be fixed.

---

It's wrong that an intellectual property creator should not be rewarded for their work.
It's equally wrong that an IP creator should be rewarded too many times for the one piece of work, for exactly the same reasons.
Reform IP law and stop the M$/RIAA abuse.

We must fight them.. otherwise it will come true!

[Gentlewhisper]

Right to read

This article appeared in the February 1997 issue of Communications of the ACM (Volume 40, Number 2).

(from "The Road To Tycho", a collection of articles about the antecedents of the Lunarian Revolution, published in Luna City in 2096)

For Dan Halbert, the road to Tycho began in college--when Lissa Lenz asked to borrow his computer. Hers had broken down, and unless she could borrow another, she would fail her midterm project. There was no one she dared ask, except Dan.

This put Dan in a dilemma. He had to help her--but if he lent her his computer, she might read his books. Aside from the fact that you could go to prison for many years for letting someone else read your books, the very idea shocked him at first. Like everyone, he had been taught since elementary school that sharing books was nasty and wrong--something that only pirates would do.(poisoning of our school system, remember BSA?)

And there wasn't much chance that the SPA--the Software Protection Authority--would fail to catch him. In his software class, Dan had learned that each book had a copyright monitor that reported when and where it was read, and by whom, to Central Licensing. (They used this information to catch reading pirates, but also to sell personal interest profiles to retailers.) The next time his computer was networked, Central Licensing would find out. He, as computer owner, would receive the harshest punishment--for not taking pains to prevent the crime. (DRM-OS! Any takers for palladium?)

Of course, Lissa did not necessarily intend to read his books. She might want the computer only to write her midterm. But Dan knew she came from a middle-class family and could hardly afford the tuition, let alone her reading fees. Reading his books might be the only way she could graduate. He understood this situation; he himself had had to borrow to pay for all the research papers he read. (10% of those fees went to the researchers who wrote the papers; since Dan aimed for an academic career, he could hope that his own research papers, if frequently referenced, would bring in enough to repay this loan.)(Per use licensing! Bill Gates and the RIAA hoos probably masturbate to this every day!!!)

Later on, Dan would learn there was a time when anyone could go to the library and read journal articles, and even books, without having to pay. There were independent scholars who read thousands of pages without government library grants. But in the 1990s, both commercial and nonprofit journal publishers had begun charging fees for access. By 2047, libraries offering free public access to scholarly literature were a dim memory.(The OTHER 1984)

There were ways, of course, to get around the SPA and Central Licensing. They were themselves illegal. Dan had had a classmate in software, Frank Martucci, who had obtained an illicit debugging tool, and used it to skip over the copyright monitor code when reading books. But he had told too many friends about it, and one of them turned him in to the SPA for a reward (students deep in debt were easily tempted into betrayal). In 2047, Frank was in prison, not for pirate reading, but for possessing a debugger.(Well well.. INDUCE ACT?)

Dan would later learn that there was a time when anyone could have debugging tools. There were even free debugging tools available on CD or downloadable over the net. But ordinary users started using them to bypass copyright monitors, and eventually a judge ruled that this had become their principal use in actual practice. This meant they were illegal; the debuggers' developers were sent to prison.(Up to 10 years for downloading a mp3 today under the PIRATE act, 'nuff said!)

Programmers still needed debugging tools, of course, but debugger vendors in 2047 distributed numbered copies only, and only to officially licensed and bonded programmers. The debugger Dan used in software class was kept behind a special firewall so that it could be used only for

RMS focuses on what he knows: computer software.

[jbn-o]

RMS speaks quite carefully with respect to focusing on patents that cover algorithms used in computer software. If you read what RMS says about software patents, you'll see that he recognizes how, for example, automobile patents don't have the same social effect as software patents. Software programmers don't have to deal with all the complexities of physical product designers all the time.

Part of what he says about patents in other fields versus software patents:

The reason is that in other fields people have to deal with the propensity of matter. When you are designing circuits or cars or chemicals, you have to face the fact that these physical substances will do what they do, not what they are supposed to do. We in software don't have that problem and that makes it tremendously easier. We are designing a collection of idealised mathematical parts which have definitions. They do exactly what they are defined to do.

He doesn't think the same things about all patents. Read more or hear him talk about patents in other fields and you'll find that he focuses on his expertise.

The system makes this impossible

[rsilvergun]

at least practically. Our current economic system is brilliant. You've got a small middle class, a huge poor class, and a sliver of Kings. The system encourages the poor to waste their energy becoming middle class and the middle class to waste their energy on not becoming poor. Meanwhile the rich are laughing all the way to the bank. You don't need to look far to see the evidence. People are too busy living their lives to care about patents and copyrights. You don't spend 50+ hours a week getting by and then the rest of your time mailing letters off to your congressman. You spend that time relaxing, or with your kids, or your hobbies. The key is to always hold out the promise that things will be better, if only you'll just work a little harder....

One lawyer would starve

[microbox]

If a town has only one lawyer, then (s)he starves. If the town has two lawyers, then they're both rich. The moral of the story is that lawyers know how to create work for themselves, and they are carving our a new niche in the software industry.

Perhaps you should collect data on how all the lawyer expenses are just a ball and chain around the industry. Thus, the numbers of $$$ spent on patent attorneys, legal fees, court cases and such.

Then you can argue that other than killing innovation, creating artificial barriers to entry and a software oligarchy, the industry is also spending $$$ on this complete waste of time.

Not sure

[einhverfr]

Personally, I am not sure that software patents are the overarching threat that people make them out to be. IANAL, though I have done some reading into patent law and have been thinking about the role of patents in the software industry for quite a while. I used to be afraid of them, but not anymore. Here is why:

1) The really dangerous patents (say, required to interop with Microsoft software) may be vulnerable to court-ordered licensing in terms useable by the competition as per anti-trust law. (Again, IANAL).

2) Although the theoretical danger of software patents partially revolves around the fact that nearly every software patent will be obsolete long before it expires, this actually serves to kill encumbered technology (such as GIF) because people are realizing that they don't want to be tied to dead-end technology. With unencumbered technology legacy integration is far more straightforward, and the cost is usually lower too. So encumbered technology only lasts a couple years before it is superceded by "good enough" unencumbered technology. By encumbered, I mean software technology with comparitively onerous patent licensing conditions.

Look at the popularity of GIF today compared to PNG. Compare to where everyone was when Unisys decided to pursue their patent rights. This is a case in point regarding how patent encumbrance kills encumbered technology.

3) Patents are *expensive* to enforce. After a few such suits and the fact that in the end they won't get much in the way of damages, companies will decide that suing open source projects over patents is simply not worth it and will go away.

Yea right.

[OmegaBlac]

...any more than you can expect to kill every monster in a video game: sooner or later, one is going to defeat you...

Not if I activated the god code!

You don't get it.

[hopethishelps]

The important thing is to educate the politicians.

That comment reveals a major misconception. You assume that if the pols knew what was best for the country, they'd do it.

It's very difficult to get elected to Congress. The rewards for getting elected are huge, so there's a lot of competition (at the stage where it matters - getting nominated by the incumbent party). You have to be very smart to succeed.

You may be thinking, "But pols are always saying stupid things, so how can they be smart?" Understand the answer to that question, and you will understand a lot about modern politics.

What a politician says has nothing to do with what he/she believes. A politician says whatever is most likely to result in re-election.

Educating pols is pointless. They're smarter than you, and better informed. Your only chance is to persuade voters to vote for better pols. That's extremely difficult, because corporate dollars are always against you. But it's always harder to do something effective than to do something pointless.

laws like software?

[joostje]

I mean, most laws I've read read like "if you do X, then the penalty is Y, unless...".

That actually looks a lot like a software program to me, the only difference being the language it's written in.

Now, wouldn't there be patents that describe algorithms that are actually used in the lawbooks too? That way, you could either make the lawmakers see that patenting software is like patenting lawmaking, or, if the lawmakers argue that the important thing here is the different language the laws are written in, then you could write a Law-to-C translator, that translates algorithms described in a law-like language to C (or any other computer-language).

The best way to fight software patents

[beforewisdom]

Is to make ordinary people who aren't involved with IT care about the issues.

RMS started the free(dom) software movement because he was losing a lifestyle he cherished.

Big money corporate players are starting to use their influence on the goverment to curb open source. The only way the free(dom) and open source people can stop this is to get strengt in numbers......ordinary people.

Ordinary people are not acquainted with all of this stuff and if they were they don't have a non-abstract reason to care. It is just not part of their world.

The best way to get them to care..........enough to yell at their representatives if the government pulls a fast one..........is to give them software that they love.

That means easy to use.........not what a geek considers to be "easy enought"....and user support communities without an attitude about people who have no desire to make computers their avocation.

Re:We must fight them.. otherwise it will come tru

[slimyrubber]

Tinfoil hat alert. Better get yours now. Oh, and buy gold.

Right now it seems that everything on that article has come true except for banning open source software.

Did you even read the parent post?