Groklaw Rants On Software Patents

LMCBoy writes "Groklaw has the story of Kodak v. Sun (mentioned on Slashdot already), which PJ calls 'Exhibit A' in the case against software patents. Her analysis of Kodak v. Sun, and the larger issue of software patents, is excellent. Bottom line: the software patent 'cold war' provides no benefits to anyone, and will inevitably make the game of software development impossible for anyone to play."

Comments

Could be better

[ravenspear]

I don't think the issue is as much with software patents in general as the way the system is currently implemented. The Patent Office is so clueless about prior art wrt software that pretty much anyone can patent anything that hasn't already been patented. They can then use that to intimidate or sue other companies even if those companies have been using the same technology for years without obligation to anyone.

Re:Could be better

[pe1rxq]

Personally I don't think there is anything special about software... Patents are just wrong.
The patent system assumes that ideas are something unique and that it is something special to come up with new ideas. It is only with software that the mistake becomes really obvious.

If it were really neccessary for us to advance how the hell did the monkey ever come out of the tree without a working patent system?

Jeroen

Re:Could be better

[roman_mir]

Patents are not just wrong. An inventor with his new shiny invention goes to a manufacture X, and the manufacturer gets the implementation details for the invention and profits and kicks the inventor out of the door. Bang. If you are the inventor you want some protection.

Software is different. The barrier to entry is small, all you need is a Turin complete machine (a PC) and you are golden. Well, at least you can build some things that way. But the problem with software patents is that software is really just special cases of math, and math ideas should not be patentable. Do you want to pay royalty to company X just because you added 1 and 1 together?
Software ideas are too broad to be patentable. An example:
Controller software managing transformation and transmission of data structures.
That's it. That's your entire computing right there. If I patent it everyone has to pay royalty to me if they use a computer in any way.

Software is different from physical things in a way that it represents ideas more than just implementations. Patents to physical objects are more obvious than patents to ideas that can be in principle reduced to a simple set of mathematical rules that define the Turin Complete Machine.

Re:Could be better

[RodgerDodger]

That's not what patents were about. Patents were about the real, demonstratable fact that producing an idea and turning it into a finished product was an extremely expensive process in the 19th century. In many industries, this is still the case.

In order to foster innovation, companies needed protection; otherwise, it was a lot cheaper to let the other companies innovate and then copy them later.

Two things have changed in this regard:
1. Many ideas are now a lot cheaper to take to market than they used to be. This makes the cost of innovation a lot less, and thus the rewards (in the form of protection) should be less, in those areas (it's not true everywhere).

2. Companies have taken to a scattergun approach to patent laws. The idea has become to profit from the patent, not from the innovation. This is particularly bad.

How to solve this: Restore patents to a state where they only protect innovation, not litigation, and make them non-transferable; a company that's gone bankrupt anyway doesn't need protection, and with acquisitions it's easy to keep the old comapny alive to retain the patent right.

Re:Could be better

[Dashing Leech]

I agree. I have yet to see an argument that demonstrates "software" patents are inherently bad. There really is no such thing as "software patents" anyway. They are patents on "methods" or "algorithms". Some of them can be implemented in hardware rather than software but in this day and age that is unlikely to happen. There are essentially two arguments against such patents: examples of bad software patents and the harm they've caused, and stating that software is just math and math isn't (or shouldn't be) patentable. This is essentially what the case against software patents comes down to. Lets look at these two arguemtns:

Examples of where "software" patents have been, or can be, harmful is not an argument that they are inherently bad. There are also bad "device" patents even outside software, such as the combover and using a laser pointer to play with a cat. It also doesn't show that all software patents are harmful.

The harm caused by some software patents isn't because algorithms and methods are patentable, it's because simple obvious ones are being approved as valid patents. Think about it. If the algorithm is not trivial or simple, nobody would come up with it by chance anyway and so it isn't stopping them from doing anything. For example, there are a multitude of machine vision algorithms such as facial recognition or object recognition. You can't accidently stumble on the same approach, they are complicated an non-obvious. Patenting these harms nobody. If they weren't patentable, many of these intelligent algorithms would not get published and would be kept secret, so we'd never learn how they worked and couldn't improve from them. Conversely, as in the typical examples given, if someone can inadvertantly implement a patented algorithm, it must be somewhat obvious to people in the industry (and hence shouldn't be patentable).

As far as the "it's just math" argument, I go back again to machine vision. Yes, it can be written as math. But we're not talking about fundamental math derivable from first principles, we're talking about procedures that involve math as a basic building block. This is akin to developing physical devices in which physical laws are the basic building blocks. Often a physical design is optimized by math, the same as an algorithm.

In short, so far the arguments against software patents in general don't hold water. Yes, there absolutely has to be patent reform, but that includes all forms of patents. But that doesn't mean that one has to throw the baby out with the bathwater. There are non-harmful algorithms (and I would argue these are the majority of algorithms) and it is in the public's interest to provide some protection to the inventor, otherwise these algorithms will be kept secret.

Re:Could be better

[Anonymous Coward]

The problem with software patents is not that they are not special, it's that it's nearly impossible to determine novelty or nonobviousness.

Given that, patent is pretty much impossible idea to apply for software, and trying to do so is counterproductive to patent's intent. How would you "tweak" the system to suit software?

...it is the aggressive pursuit of software patents that will, through disclosing these methods, eventually reign in the "software patent monster" by increasing the availability of prior art...

Not as long as USPTO keeps pumping out stupid software patents (and stupid patents of other types). It's like sucking with a straw at the mouth of fire hydrant. This will make expensive legal service prequisite for software development work of all scales. You wouldn't be a lawyer, would you?

It took roughly 7 million years (6.8, IIRC) for those tree apes that became men to develop the (modern) steam engine. It took approximately 200 years from the development of the modern steam engine for man to land on the moon. Innovation during the latter interval was protected by an effective patent system while innovation in the former interval was not.

Now you are sprewing complete bullshit. Did European Enlightenment start because patent law? Did Von Braun built the rockets because patent laws? Did Henry Ford employed assmebly line because of patent laws? What buncha self-serving nonsense.

Re:What about GNU Java

[Anonymous Coward]

If Java and similar virtual machines (.NET) are encumbered by expensive billion-dollar-patents; this could be a huge thread to moderd software development under Linux.

My guess is that Sun now sees Kodak as a valuable partner in keeping Solaris(which can run Java) alive and keeping Linux (which has no Kodak license) out of the market. For that, $1 billion is a small price to pay.

Kodak vs. Polaroid

[Anonymous Coward]

Does anyone remember the Kodak vs. Polaroid lawsuit?

Maybe that experience is what gave Kodak the idea. The sheer number of software programs constantly being developed also makes patent searches an overwhelming task. And how do you research prior art in proprietary software licensed under terms that forbid reverse engineering?

There are other reasons too that they list. Software is developed so rapidly a 17-year blockade is impractical; it never wears out, so the traditional argument that patents are needed to stimulate stagnant industries doesn't apply.

Patents hold back rapid development, and they are designed to protect mature industries, once the rapid phase is completed, but with software, there is no end to the rapid development, no maturity plateau that can be beneficially protected.

As Microsoft has learned, software doesn't wear out. You can run Windows 95 in 2004, if you so choose, and the only motivation to upgrade is if the customer wants innovation, new bells and whistles. So patents aren't needed to encourage invention. Software companies have to invent, because their product never wears out.

Re:rants are annoying

[mistersooreams]

I agree with you that rants are for blogs, but I think the blurb does it a disservice by calling it a "rant". It's certainly an impassioned and angry diatribe by someone who feels very strongly on the subject, and maybe that's what rant means to you. But the article is also well layed out, structured, and an interesting read. I don't think we should label every piece of writing which contains a strong opinion as a "rant" - it's good to know that people care about these patent issues.

Patents won't stop innovation

[Anonymous Coward]

After all, patents aren't like copyrights, where Congress keeps granting extension after extension to the protection period. They'll eventually expire, though granted the number of frivolous patents will obviously slow innovation down incredibly.

This might be an object lesson in other fields, though. If we want to slow down the pace of genetic engineering, for example, just allow extremely broad and ill-defined patents in the field, and by the time they expire perhaps we'll have time to define a series of ethics and protocols to safeguard us.

/ only slightly facetious

This epitimizes what is wrong with SW patents

[eamacnaghten]

This epitimizes the case against software patents. They are too open to abuse. The purpose of patents is to encourage inovation, I do not think this is the case with software ones. The vast majority of software is written by employees of non-software companies for those companies. Software patents are irrelevant there. Copyright performs as good a protection where needed regarding software as ever is required.

Even if you think patents are a good thing (as I do), there is no room for Software Patents. The only people they benefit are the Lawyer IP-Land-Grabbers. The vast amount of the proffessionals in the industry I know are against them (includiong me).

Re:This epitimizes what is wrong with SW patents

[mdfst13]

"Once the patent wars start, there'll be no stopping them"

Unfortunately, the big players cross license with each other. Microsoft deals with Sun deals with IBM. The only companies that work as loose cannons are those (like Eolas) that do not produce software products profitably. They can't be intimidated into cross licensing because they don't actually produce the software.

good for open source

[cinemabaroque]

there are too many coders for a software patent to be enforceable, especially since a lot of you are the people at the companies. Enforcing a ridiculous software patent is akin to the United States "war" on drugs. A senseless and expensive (lots and lots of jails for non-violent crime) effort that has completely failed to keep drugs out of white suburbia. There are too many of us to keep track of, and even if a specific tool is banned it isn't so hard to make another one, especially with so many millions of copies of the source code for any infringing program would be all over the world.

Re:good for open source

[RWerp]

A senseless and expensive (lots and lots of jails for non-violent crime) effort that has completely failed to keep drugs out of white suburbia.

I thought the war on drugs was meant to keep out drugs of all suburbia. Has the US administration gave up keeping colored kids away from drugs and focused on whites only?

Re:What about GNU Java

[B'Trey]

Sun doesn't want Java to be a Solaris language. They want it to be a ubiquitous language. If Java can't be run on ony OS, then Sun loses. Which isn't to say that this can't help Sun. If they have a license for their runtimes, then any other implementation could require a Kodak license. Bye-bye, any other implementation. Hello, Sun regains their absolute control of the language and implementation.

There's also another issue. If this affects .NET, where does that leave Mono? How much do you figure Microsoft would pay to shut down Mono?

Untrue

[Anonymous Writer]

the software patent 'cold war' provides no benefits to anyone, and will inevitably make the game of software development impossible for anyone to play

It would shift the production of software with unhindered innovations from countries that have intellectual property restrictions to countries that completely disregard them. Governments that are allowing these patent controversies to continue are killing the IT segment of their economy, and will eventually be surpassed by the unrestricted countries. It provides benefits to the latter.

It's not a rant, but the news item is low quality

[EJB]

To rant is "to utter in a bombastic declamatory fashion" or "to talk in a noisy, excited, or declamatory manner". I can't find that in PJ's article. If Michael does believe that PJ's article is like that, he should have the guts to say so, instead of implying that the story submitter called it a rant, which he didn't, as he posted here.

The only ranting I saw was in the title of the item. It would do the poster good to observe some courtesy towards other news sites.

Re:Why aren't univerities better at the patent gam

[solarcardork]

Unfortunately, this is the way it's heading in the US. Many universities in the US are running into problems with patents and IP. Even up here in North Dakota we've had an incident were NDA's had to be signed after a student presented a project he was working on.

Traditionally, the university was used to progress and disseminate knowledge. Now, due to increased administration, budget cuts, etc., all the knowledge is being locked away just in case it might be worth something.

I'm not sure what can be done about it, but it is unfortunate and wrong IMO.

Re:Bzzzzzzt

[Anonymous Coward]

I'm with you, brother. Before all this patent controversy I had nothing to moan about on Slashdot. Now I can get karma easily by making the same tired arguments over and over again.

How is software really different?

[EmbeddedJanitor]

Even though I have approx 10 patents myself, I'm not pro patents of any form.

The "software doesn't wear out" argument is BS. When you sell software, you don't sell the software as such, but the right to use it. While the software itself does not wear out, the usefulness does. eg. Anybody still using TurboPascal V1 for MSDOS? Expanding on that, if anything software "wears out" faster than mechanical mechanisms.

When you take out a patent, you're not so much protecting your product but you're protecting your market/customer base. This doesn't change when you're making software or little mechanical gizzmos. All the examples showing that patents kill software innovation could equally be applied to mechanical gizzmos too. eg. "Method to attach spring to washer" is just as much a problem for somebody making gizzmos as "Nesting identification by colorizing". If Ford own a patent for some engine technology, they can prevent Toyota using it. So how is this different from IBM preventing Microsoft doing something?

The "software is different" proponents are just like the people who whine about their tech job going to India while wearing Nikes made in China. Patents of all kinds, including software ones, have common problems.

Re:How is software really different?

[rollingcalf]

Software is the only thing in the world that can be patented, copyrighted, and be a trade secret at the same time (because source code in usually not revealed). That definitely makes it different, and that sort of multi-level IP protection is excessive.

Re:How is software really different?

[QuantumG]

Especially when you consider that the purpose of a patent is to expose how something works so that inventors don't need to keep it a trade secret.

Re:How is software really different?

[Dun Malg]

The "software doesn't wear out" argument is BS.

What are you talking about? Software doesn't wear out. There are programs running in the insurance industry that were written 30+ years ago. And funny you should mention, but there are odd little niche markets where people DO still use TurboPascal for MSDOS. I know of at least two software products written in Pascal, designed to run on MSDOS platforms, which are still being maintained and updated by the original creators-- in Pascal for MSDOS. One of them even complained to me about having trouble finding a modern computer that would work with his old TurboPascal.

Anyway, you're missing the entire point of the argument. The fact that people upgrade is, as stated in the article, because the industry requires constant innovation to sell new products. They don't need patents to stimulate innovation, as innovation is an integral part of the business model-- because the product doesn't wear out and require replacement. The reason most people don't still use TurboPascal for DOS is because better products came along. If neither the hardware nor the software ever got any better, you can bet your ass people would still be using their same old copy of TurboPascal for DOS rather than buying a new copy of TurboPascal for DOS becuase the old one would never fucking wear out.

Re:How is software really different?

[0x0d0a]

One thing: in the current state of the software world, change is much more rapid than almost any other fields. The length of patents is quite high.

Other issues:

* With software, systems are generally quite complex and require effort to re-implement. Consider your "Method to attach spring to washer" -- if you *didn't* have a patent, it'd take your competitor five minutes to figure out what to do by glancing at your system. In software, just because you have the latest version of a 3d rendering package doesn't mean that you can reproduce the features. Since the reimplementation cost is relatively high, patents are less crucial for software than for other fields.

* The bogus patent boom has coincided with the tech boom. Might just be unfortunate coincidence, might be a serious problem.

* The barrier to entry to designing and producing professional-class software is much lower than to designing and manufacturing new professional-class mechanical systems. You need a computer and a compiler versus machine tools, a CAD system, materials knowledge, and so forth. It's harder to regulate and monitor the software world.

I think that you're right -- that patents in general have some problems -- but it's a lot easier to try to loosen patents WRT software, especially since originally most countries disallowed patenting of algorithms. One thing at a time.

Chicken Little

[tabdelgawad]

One (failing) multi-billion dollar company has just won a billion dollar lawsuit against another multi-billion dollar company. Cry me a river.

Rants aside, the raison d'etre of patents is to promote innovation. Now I don't see how patents have fostered software innovation in the US; copyrights seem to be sufficient protection for that. On the other hand, where is the *evidence* that patents have choked-off software innovation? What developer did not pursue an idea for fear of a patent-infringement lawsuit?

I'm not trolling. If we're going to argue against patents, then let's see the evidence that they actually choked-off innovation; the linked "industry at risk" story makes some cogent arguments, but read closely and you'll find it's mostly speculation about what *will* happen in the next decade.

An aside, but check out this quote the "industry at risk" story uses to bolster its POV: "Thus, if a small company tries to use a patent to "protect" itself against competition from IBM, IBM can usually find patents in its collection which the small company is infringing, and thus obtain a cross-license. Besides which, if you are a small company, do you really want to try taking IBM to court?"

Wrong To Argue No One Benefits From Patents

[Anonymous Coward]

It's wrong to assert that software patents benefit no one. Someone who holds and enforces an important patent stands to make lots of money. That is definitively a benefit.

Consider: If someone had patented DNS, each DNS query might chalk up a micropayment in the patent holders' account. That's a serious benefit for the patentholder.

That's the incentive driving patents.

It's possible to argue that "society" suffers from all this, while one individual prospers. Perhaps. But, society is a morass of people with conflicting interests, not a phalanx of the altruistic marching toward the common good.

Litigation Death Nell

[madstork2000]

The other thing that irks me about this is Kodak, is it is yet another company that has been bleeding badly, and thus turns to litigation to survive. Hopefully soon a judge and the judges above them will get a clue and realize software patents are ridiculous, and should not be allowed to survive.

Maybe someday a judge will be appointed that has a computer science background that will be able to see as plain as most programmers how wrong and misguided software patents are. Until then I know I'll never buy another Kodak product. . .

The problem (hopefully) written in one sentence:

[Soko]

"Computer code is simply the expression of inate human ideas in a different language - the difference being that the language spoken is one that a machine understands, not other humans."

(Perl jokes aside...)

IMHO, the expression of ideas in any language is covered by copyright law, not patent law. Ergo, software patents should not be allowed, since there's already plenty of protection under copyright.

Soko

What Makes Software Patents Different

[shirai]

As many have mentioned, the idea behind patents is to encourage innovation. So for example, if inventor A decides to create a specific implementation of an idea, then all the effort to create that implementation does not go to waste.

One thing that I never see pointed out as a key difference between software patents and traditional real-world patents is the time it takes to make an implementation.

For example, in the past, it could have taken years and thousands to millions of dollars of development and testing to create a patentable idea. Because of this, you need a way to protect that hard work and investment or, yes, nobody would spend the time to invent things because they could get stolen by big companies (patents were originally designed to protect small inventors ironically). The problem with software patents is that it hardly takes any R&D whatsoever to create most of the patentable ideas. All it takes is an idea, something that patents were originally designed NOT to protect. They were designed to protect the implementation of an idea.

All the BS patents seem to fall into the space of no R&D for implementation, especially the "business processes" patents like 1-click. It's like "Oh, I have an idea," let's patent it. The patent office is making the erroneous assumption that not being able to patent an idea as soon as you thought of it would somehow have discourage you thinking of the idea. If software patents are allowed at all, they need to be tempered by the amount of research it requires to go from idea to implementation.

You should NOT be able to patent a "Hey, I just thought of something idea" that takes 10 minutes to implement. Practically all web-based patents fall into this category. I think there is still room for patents on ideas that take a lot of R&D work, investment and time.

Re:What about GNU Java

[QuantumG]

True, and remember, Microsoft is playing the "our language is standardized" game until they have captured the hearts and minds of developers everywhere, then they'll squash all other implementations of their language (dotGNU, mono) with big patent infringement cases.

Re:Fuck Sun Microsystems

[ScrewMaster]

Yes, but how will you feel when Kodak (or anyone else) goes after a company that you do respect, and whose products you use?

I don't smoke, for example. I detest the things because of all the bad things they do and I'm somewhat allergic to them so I get physically ill around smokers. However, I'm dead set against policies that are directed specifically against smokers: excessive taxes on cigarettes, anti-public-smoking laws, etc. I personally wouldn't mind if all cigarettes disappeared from the planet tomorrow, but I do know that if we tolerate unjust punitive measures taken against one group (however unpopular) the next time around may be different. Hell, we might find ourselves in the hot seat.

There are serious benefits.

[bmetz]

Bottom line: the software patent 'cold war' provides no benefits to anyone

IBM nets billions in profit from patents annually. How is that not a benefit?

One way to fix.....

[icejai]

One way to fix the patent system (re: software patents) without going through the arduous process of patent revokations, appeals, re-reviews, peer-reviews, court dates, dumb juries, is to simply limit patent protection to 2 to 3 years.

That way, those who are serious about their idea will be given plenty of time to get a head start and license out to those who can't wait, or don't want to fall that far behind the curve.

Those who make it their business model to sue won't have much time to sue. Most companies may just simply wait it out, or license a non-infringing technology, or simply work out some 2-3 year licensing agreement.

And once the protection time is over, those who waited will have to play catch-up... and it'll be back to the good'ol days where companies actually competed on things like cost and quality.

Karma Hits Sun

[reporter]

When SCO slapped IBM with a multi-billion dollar lawsuit, the management at Sun Microsystems snickered and bragged that it had "legally" bought the perpetual right to the UNIX patents. Then, the management prepared a knife to stab into the back of the Linux movement.

Next, the management showed its hand by doing a deal with the devil: Bill Gates. He gave Sun Microsystems a ransom on the order of a billion dollars.

Now, Kodak comes out of nowhere and slaps Sun Microsystem with a lawsuit and wins a billion dollars.

Apparently, karma works.

Hmmm.. Kodak could have hit paydirt

[Anonymous Coward]

A pantent on the concept of a "method by which a program can "ask for help" from another application to carry out certain functions"

What about Ole ?

What about spellcheckers ?

what about plugins in general ?

what about web browsers that launch upon clicking a URL from another app

maybe I am misunderstanding the patent

anyone else see possibilites for this ?

All our rants will do absolutely nothing

[Anita Coney]

The only thing that will stop software patents is if big business wises up and realizes that they're bad for business. I.e., with software patents, there will be impossible to innovate without being sued into submission.

Congress and the patent office will NEVER change the rules without pressure from business because the patent offices makes a LOT of money selling patents.

I'm not saying we shouldn't educate people about the issue or that we shouldn't discuss the issue, I'm just saying not to get your hopes up.

Wonderfully evil

[Evil Pete]

Are you a student of Machiavelli, or merely a gifted amateur. [rhetorical question, no need for a question mark]

The scenario you describe is all too likely, the IT/IP mix is like a powderkeg at the moment with software patents. Sounds unethical to me to start such a bloodbath, but one could argue that if it was deliberately started now it would be like "back burning" to prevent bush fires, preventing something even worse later on.

Ugh, wake up

[Rorian]

After reading the groklaw article, I realized one massive flaw in their argument: Why the fuck would big companies want to ditch software patents now?

IBM, Microsoft, Sun, Kodak, you name it - they've all sunk huge sums of money into buying these software patents, and aside from some lawsuits between eachother, they all stand to win, by crushing opposition with their ridiculous repertoire of patents. So when the article states "The solution is obvious. Everybody needs to get rid of their stockpiles of weapons. Declare patents don't cover software, and everybody wins. Except some lawyers, who will then have to find other work. And not a moment too soon.", it just doesn't work. Like the Cold war, the big players really cannot lose, and getting rid of their "stockpile of weapons" is NOT an option.

Still, I guess we can all dream that this will happen, Linux will be safe from Microsoft, Java will be open-sourced, and safe from Kodak.. or not :(

Re:What about GNU Java

[QuantumG]

Thanks for your reply, but you don't know what you are talking about. Microsoft has a number of patents that cover the exact things that they have put into the ECMA standard. They are simply not suing anybody with these patents yet because it is not YET in their interest.

What will it take?

[thewiz]

Unfortunately, IMO it will take some software companies being litigated out of existance before the patent laws change. Like healthcare in America, changes to law are ALWAYS a reaction to something being really out of whack.

Think about how long it has taken for Americans to get a clue about how bad things like McDonalds food are for your health. Our healthcare system reacts to things, like people having a heart attack, instead of the person taking preventative measures (exercise, diet) before the heart attack happens.

It's going to take several major software companies having legal "heart attacks" because of software patents before the rest of the industry gets a clue and quits dining at the trough of patents and IP.

Re:Software and Patents

[TheInternet]

Software is no different than any other type of intellectual property. Software patents are no different than any other type patent

I disagree. The inherent complexity and abstractness nature of software development puts it in a separate category altogether.

Not to mention the rate at which software is being written. Not many people are going to go out and build their own bridge, but how many people have written something that would qualify as a virtual machine? Quite a few. It's a natural progression.

I frankly don't think we could have forseen something like software development when the patent system was originally designed.

I'm not yet sold on the idea of "no patents", but there are too many patents lawsuits that amount to abuse in rather than true defense. The abuse is becoming a business model, that's what most people take exception to.

- Scott

Re:Why aren't univerities better at the patent gam

[mdfst13]

"A patent has to be new, useful, and nonobvious."

So how is the object manager patent a new, useful, and nonobvious improvement on Smalltalk (which is mentioned under Other References)?

When Thomas Edison's laboratory was inventing the light bulb, they tried thousands of wrong solutions over the course of a year and a half. That kind of work does require patent protection, since it is much easier to reverse engineer the one correct way than to redo the research.

Software is the opposite. It is a constructive process rather than one of elimination. One starts with a framework and then develops the various required processes inside that framework. Reverse engineering is at least as difficult as redoing the development. Further, there are frequently multiple ways to accomplish the same task. Note that Microsoft's announced plan in regard to the Eolas patent is to replace the code. Eolas is not going to get rewarded for "innovative merit," just for hiding their monopoly. If Microsoft had found the patent in the first place, they would have simply avoided the Eolas method.

Yes, there are some ideas in software that are, in fact, new, useful, and nonobvious. However, they are not the results of long research, but of intuitive leaps. For example, the GIF patent was based on the Welch variant of the Lempel Ziv algorithm. The primary difference between LZW and LZ is that LZW adds sequences to the translation dictionary one step earlier. For example, LZ does not compress baba at all (it would compress bababa). LZW compresses the four eight bit characters to three nine bit characters.

Software patents can also have an actively harmful effect on research and development. For example, if Sun has to pay a billion dollars, what effect will that have on future development of community languages? What happens to Java if Sun refuses to pay Kodak's licensing fees (note: I find this scenario highly unlikely but it's worth thnking about why it's unlikely)? What happens with other object oriented, compiled to bytecode languages that do not have Sun's deep pockets (e.g. Python, GNU Java)? This is especially bad since applications aren't published at the time of application, so someone may have already patented the system that you are currently developing.

Old geeks should enter a class action vs. USPTO

[garyebickford]

Knuth was right!!

Changing the rules in the middle of the game was unfair and should have been blocked in court. All the geeks from "back in the day" should participate in a class action suit against the USPTO to have all software patents overturned.

If we had had the chance to patent software back then, my associates and I might well have patents on certain types of client-server architecture, physical disk mapping, soft failover disk servers, tiled images with prefetch for seamless virtual panning, using neural networks for heuristic evaluation of image convolution patterns, 'tiled' convolution pattern matching, various methods for converting scanned image data into 3D terrain models, etc., etc. If not our group, then certainly others before us. But we did not have the opportunity to do so because at the time (early 1980's) software was not patentable!

Allowing SW patents 10 to 30 years after many of the most significant innovations was violently unfair to the hundreds or thousands of creative people who developed the industry to that point, and produced nearly all the real inventions, under a non-patentable paradigm.

In the early 1980's my teams developed dozens of major innovations that today could be patented, but at that time were restricted to the thin "trade secret" and copyright protections. The entire philosophy of the industry at that time was either keep it secret, or publish. There was no middle ground. We were just a minor group, there were hundreds or thousaands of others doing as well or better. None of those innovations were protected as "Intellectual Property" - we just shared ideas.

Now, after all that work, stuff that we built back in the 1970's and 1980's is being patented right and left - not to mention trivialities like file formats for a disk partition scheme!! What's new in that?

At this point the best action might well be for all of those who were around before the USPTO changed the rules to get together and file a class action suit against the USPTO to have all software patents thrown out and return to the previous presumption that software algorithms were mathematics to be discovered, not invented. I would suggest a legislative process, but I doubt that this would go anywhere in today's environment.