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

What about GNU Java

[Anonymous Coward]

Does this mean the end of GCJ and other "Free Software" java implementations?

Maybe Sun wanted to lose.

Or perhaps someone who gave them over a billion dollars wanted asked them politely to lose a case like this.

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?

Re:What about GNU Java

[Anonymous Coward]

The problem with your argument there is that the particular /someone/ may also be violating that 'patent', and get screwed as well..

Not true. Remember that Kodak got that particular set of patents from Wang; and in a long ago intellectual debate between Microsoft and Wang, MSFT paid/invested $90 million to settle issues on a set of Wang patents that covered OLE. It's probably the case that this settlement got them a pretty broad IP cross-license including the Java patents.

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: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.

Re:What about GNU Java

[Free_Meson]

FYI, the patents infringed upon were:
US Patent # 5206951 Filed April 3, 1991
US Patent # 5421012 Filed May 30, 1993
US Patent # 5226161 Filed August 31, 1992

Because in the U.S. patent rights belong to the first to invent rather than the first to file, and companies often wait a long time before filing in order to maximize the value of each patent (the more you know about your eventual product when you patent it, the better you can protect it) it is likely that at least two, and possibly all 3 of these were "invented" before sun put together its green group, which eventually created Java.

For anyone interested with access, westlaw has 4 documents from this case, including rulings on FRCP 12(b)(1), 12(b)(6), and 56(c).

From the Court's Rule 56(c) decision (August 2, 2004):

The patented inventions attempt to solve this problem by teaching the creation of programs that, when faced with an unknown object (for example when a word processing program is faced with a picture), seek help from other software programs that do understand the unknown data (in this example the word processor would seek help from a graphics program that understands picture data). In the most general terms, the patents describe a set of software programs where the programs have the ability, when confronted with a foreign type of data, to send a message seeking the assistance of an independent software program to help manipulate the unknown type of data, and have the ability to receive help from a second program to manipulate the unknown data.

I'm not sure there's a cut-and-dry case for prior art here. This seems to cover a specific method for one program to ask all other programs how to handle data -- a sort of "plug'n'play" for datatypes. While this is common (if not foolproof) right now, it wasn't in 1991 when the first patent was filed. IF the court is going to generally take this broad a view of this patent (reading the summary judgment decision I saw no reference to the specific methods mentioned in the patent) then Microsoft Office is probably squarely in Kodak's sights. Office was first released for windows (according to WIKI) in 1992 and I don't think it was as seamlessly integrated at the time as described by the patent. Further text from the decision:

The patents disclose the use of a set of integrated computer software programs that can work together to create documents, (or understand documents that have already been created), which use different types of data. Specifically, the inventions teach the creation of a software program that can seek the assistance of other independent software programs if the original program comes across, or is asked to use, data that it does not recognize. For example, a word processing program may generally understand only one kind of data: text. If word processing document were to incorporate a picture, the word processing program would not understand how to manipulate the data containing the picture, and would be unable to display or print the picture.

The kind of integration described in this patent was to my knowledge not existant at the time it was filed and is a rather recent thing. At the very least, it seems that this portion of the patents at issue were significantly ahead of their time, or at least enough that Wang actually worked on the project first and didn't win some race to the patent office.

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

[pe1rxq]

You are using the same old story about the little inventor and the big bad company....
A little spin on that one:

An inventor with his new shiny invention and a few tens of thousands of dollars to spare goes to the patent office and gets a patent. (Ignoring the fact that a few thousand others might come up with the same solution when presented with his problem)
Now the inventor goes to the manufacturer and waives around his patent. Manufacturer says: 'great, but by the way we have a few patents of our own that cover part of your invention'
Inventor has no way to sell it to anyone but that one manufacturer and gets screwed anyway.

If you are a inventor and want protection use an NDA.
The current system punishes unrelated third parties that just happend to have the same idea (possibly even years earlier).

Jeroen

Re:Could be better

[Vicegrip]

Software is fundamentally a mathematical process.

Read Donald Knuth's letter to the USPTO to get a better understanding of this reasoning against software patents.

What PJ is effectively pointing out is that software patents have degenerated from rewarding true innovators to being serious road blocks to software innovation. They are land mines waiting to explode on anyone writing serious software without the resources to pay an army of lawyers to protect them.

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]

If you are a inventor and want protection use an NDA.

That misses the key trade in a patent system: publication of the idea. Your version of "protection" results in the idea being kept secret by the inventor and the public never benefiting from the knowledge of the idea, or the public can figure it out (e.g., reverse engineering) and the inventor is left unprotected. Yes, patents have a downside, but they are recognized as a necessary evil. The key to a good patent system is a proper balance between the public good and providing enough protection for the inventor to publish their idea (in a patent). Once the patent runs out the invention design is in the public domain and can be built, sold, and improved by anyone. Some people seem to miss the point that without patents there'd be fewer publically available designs.

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]

~From an anonymous examiner:

Software is fundamentally a mathematical process.

Quite true. Software itself is unpatentable - you must claim it interacting with something tangible. It controls a processor, it takes input from a user, it causes a display to operate, etc. In this way, it legally becomes a component of a larger process, like, "I'm flying an airplance and a computer is helping," even if the claims are 99% about software and 1% about airplanes.

To make that any more restrictive would cause thousands of corporate lawyers to descend upon the USPTO with innumerable appeals until a federal judge substantiated the USPTO's (new) position. Since the case law supports that a method, process, or invention that makes use of software is just as legitimate as any other method, process, or invention, you have the current practice of the USPTO.

Don't for a moment think that some nutcase on Slashdot was the first to point out that software is a mathematical process - or that Knuth was being insightful by supporting that opinion. Examiners know that "a computer" is prior art for any purely software invention, and there are mountains of case law supporting that stance. If an prior art can perform the function of another invention, even if it is not disclosed, the difference is a "naming convention". If prior art has all the functions of an invention, even if the claimed limitations are not disclosed, the prior art teaches all the limitations. Any tangible implementation of a Turing machine is prior art (if old enough) for all software. You know that, Knuth knows that, many examiners know that, and some lawyers probably know that, but the problem is that if the USPTO took that stance, there is no legal justification. The USPTO would have to fight that issue all the way to the Federal Courts and argue at least a 4 year degree in computer science to a judge who probably isn't interested and have as plaintiffs billions upon billions of dollars in corporate interest. And what for? To eliminate software patents before their issued rather than when the assignee attempts to enforce them? There is nothing for the USPTO to win and it's extremely unlikely that they could, in the first place. They are land mines waiting to explode on anyone writing serious software without the resources to pay an army of lawyers to protect them.

Lawyers are at the heart of the problem, aren't they? You know what's really going to change the situation? When two teams of corporate lawyers go after each other, appeal the case to the Federal level, and get the judge to recognize that a Turing Machine teaches all software. Want to guess how likely that is to happen? 0. The legal team that "wins" would lose anyway.

And finally, in case this gets moderated positively, take a moment to realize that police officers don't write the law and don't prosecute the law. They just do their best to uphold the law and execute the law on a day to day basis. Prosecutors, defense attorneys, and politicians make the laws. Such is the case of the patent examiner who is quite analogous to a police officer. They aren't nearly as clueless as many people think, but they're blamed for problems other people create. Take a look at the attorneys and case law if you want to know why the examiners issue "crazy" patents.

Bzzzzzzt

[Anonymous Coward]

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

I disagree. As a patent lawyer with a background in software, the "software patent cold war" has provided me many benefits (such as my new house).

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.

Good idea

[Anonymous Coward]

Can't Kodak sue SCO now ? I mean, I have a java runtime on my linux box... and who's responsible for linux? eh ?....

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.

Re:rants are annoying

[LMCBoy]

for the record, I didn't use the word "rant" in the original article submission, and nor does PJ use it in the linked article.

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

Kodak vs. Sun

[k4_pacific]

It'll be interesting to see what develops. /ducks

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

[doc modulo]

We should encourage companies to enforce their software patents. Drop an anonymous e-mail here and there, so they are notified of the infringements of other commercial companies.

Once the patent wars start, there'll be no stopping them (because of bad blood between companies) and there will be more money to be made from sueing non-open-source companies than open-source projects with volunteers.

Once companies are in multi-million dollar lawsuits. Then maybe the lobbyists working for the corporations will change their tune and push for abolishment of software patents.

My suggestion, get some good patents into the hands of EFF or similar organisations and start the conflict until it bleeds everyone dry in the US and Japan.

We know that software patents are bad because we're smarter than average, we're also knowledgeable of the industry. Others are not so forward-looking and they have to be SHOWN examples of why it's bad. This /. story is one example but we need lots more and worse ones.

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?

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.

Ask Slashdot: How do I pronounce /etc/fstab?

[Anonymous Coward]

Here's the deal, I want to ask out a girl who is a big Linux fan, has a Tux tattoo and everything, so I was thinking I would ask her like this:

"Girl, you must be in /etc/fstab because I'd like to mount you"

but I'm not sure how to say /etc/fstab! Would I say etc as "ets" or the full "et cetera", and for fstab would I say "f s tab", "f stab", or the full "filesystem table"?

Thanks!

Re:Ask Slashdot: How do I pronounce /etc/fstab?

[Anonymous Coward]

In your example, you should pronounce /etc/fstab as "OW MY EYES! HOLY FUCK THAT PEPPER SPRAY BURNS! AAAAAAAAAAAH!"

--
"It tastes like burning, Ms. Krabappel."

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.

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?

[nihilogos]

While the software itself does not wear out, the usefulness does. eg. Anybody still using TurboPascal V1 for MSDOS?

PJ's point is that you still could. The reason nobody does anymore is that MS, Borland etc now offer better products. She says that these companies innovate so people won't want to keep using TurboPascal V1, even though they could.

The tech and software sector innovate because it's in their nature. They don't need patents as a stimulus.

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 do the media companies think of this?

[ScrewMaster]

I would imagine that media outfits are in good spirits over the Sun/Kodak decision. I mean, these people have never endorsed technology, and have moved heaven and Earth to squelch any new invention that they perceive as threatening to their interests. The reason they failed as often as they did was because our legal system operated, for the most part, in the citizen's interests. That appears to be changing, with the advent of extended copyright, the DMCA, software patents ... I mean, if development of new commercial technologies grinds to a halt in the U.S., why, all they'd have to do is get Congress to block imports of tech from Canada and overseas and ... we can all go back to listening to Victrolas and piano rolls, as God intended.

All comments owned by previous posters

[CmdrGravy]

"Kodak praised the verdict and said it was part of an aggressive push to convert innovations ? both homegrown and purchased ? into real money. The company over the past several years has been issuing licenses, filing lawsuits, forming spinoff companies and finding other uses for its technologies."

It seems that today, companies don't produce products, they produce lawsuits, and that's how they get their money. How long can this continue?

Furthermore, since 1.06B is about 1/3 of Sun's cash on hand (here [yahoo.com]), what will that mean for Sun? It's 7% of their total value, so this can't be good for them.

In the end, it's only the lawyers who win.

--

First the Eolas lawsuit, now this. What is going to take for Bill Gates to wake up and say that suing OpenOffice developers isn't worth being able to lose $1.06B to a company that actually has the legal resources to wage a protracted war with Microsoft? If Sun loses this, the Microsoft had better be willing to settle in a very generous was or Kodak will go after them. $1.06B for Sun, since Microsoft has much, much more money it could just as easily be $5B from Microsoft.

This is all starting to become like nuclear weapons in and after the cold war. First it seemed like no big deal, hell it was even a requirement to be a big player to have nukes. Now all these little players are getting them, and Eolas and Kodak IMO are no different or better than the rogue states getting their own arsenals of nukes. Now the big boys are getting attacked so, what do they do? Disarm by pushing for the elimination of all software and business method patents, to keep these guys from having legal nukes to use against them, or do they just pray that not enough ankle biters will get enough patents to bankrupt them in independent and coordinated lawsuits?

--

Although I know its offical /. policy that everyone should run around in circles yelling its the end of the world everytime a software patent is infringed, this particular dispute is far from over and probably faces 5+ years of appeals before any money changes hands or any technology is changed or restricted.

First, after damages are decided, Sun will move with JNOV (asking the judge to set aside the verdict because there was insufficent evidence to support to verdict). There is probably a 10% probability of this happening in any given case, even more when there is alot of money at risk.

Second, Sun will appeal to the Federal Circuit, which usually overturnes 60% of district court decisions because district courts usually dont know anything about technology and know even less about patent law.

So, IMHO, its too early to start running around in circles over this decision, at least until the Federal Circuit affirms.

Please check the other identical story on ./ for the original posters of these insightful and interesting opinions.

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: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.

Is there an IT PAC?

[Vthornheart]

Does anyone know of a Political Action Committee for IT Professionals, Computer Scientists, the Open Source movement, or anything along those lines? If not, perhaps it's time that we formed something.

It sounds to me like what the Government needs is a large, influential group that can force them into understanding just what it is we DO. I think that's the big problem: they just don't understand what goes into Software development, and as Groklaw's article mentions, the mathematical nature of it. There is a lot we could do if we were to mobilize.

So if there is a PAC, point me in the direction and I'll join it. If there's not... perhaps we should make something happen.

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.

What if I don't want to patent my ideas?

[Flyboy Connor]

I am currently finishing my PhD thesis. In it, there are a couple of new ideas (which I have empirically verified) in the field of software engineering. These ideas are clearly more serious than many of the software patents that have been granted in the past few years.

When I talk about my work at conferences, it occasionally happens (especially when "business people" are in the audience) that someone eagerly asks, whether I have already patented those ideas.

My answer is no. First, patenting is expensive. I don't have the money. Second, I want my ideas to benefit the world (that's what science is about, I think). I do not want to hoard them for myself. Third, if I want to patent my ideas, I have to spend a lot of time on legal stuff. I am a computer scientist, not a lawyer. I rather not do that.

But now there is a problem. If I do not patent my ideas, what withholds someone else from patenting them? It is not a requirement that you are the originator of an idea to patent it!

Prior art? Sure, I can bring that forward. In court. Which is not what I would like to do, because, (1) as I said, I am not a lawyer, and I hate spending time on legal matters, and (2) if I attempt to sue company X which has patented my ideas, for which prior art exists, no doubt that during the case, the expensive lawyers of X (which I can't afford) will have turned the case around and start sueing me for something, anything. Prior art is no defense. Basically, there is no defense if you are not rich enough to be able to afford expensive lawyers.

What I would really like to have, is a possibility to say, without all kinds of legal hassles, "Here are my ideas, they are for the world, anyone can use them, for free, forever." This should protect my ideas from being misused in patent form.

Guess what, that is impossible. I have a choice to either claim sole ownership of my ideas, and become a 50% of a lawyer, or to throw my ideas out to the world, close my eyes, put my fingers in my ears, and hope that the vultures leave something of my ideas for the world, and for me, to use.

If you look at it objectively, that is ridiculous. Patently ridiculous.

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 ?

Kodak Moment?

[magefile]

Does PJ call it a Kodak moment?

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

[Free_Meson]

And filing/defending a patent isn't easy. Filing costs are around $10,000 and you have to register your patent across the world (Europe, USA, Japan) and you must defend the patent the minute it is violated.

I don't see how you think you can discuss patents and intellectual property intelligently when you don't know the difference between a trademark and a patent. You have no duty to "defend" a violated patent. A patent is ONLY the exclusive right to prevent others from practicing the invention or process described in the patent. You also don't "register" a patent -- you have to file for a new patent in every country where you want one (though some countries are combining for this purpose, or are moving towards cross-patenting agreements). If you want to patent something in the U.S., and you only want to use that patent in the U.S. then you don't have to bother with the rest of the world. BTW, the patent application fee for an individual or small company is a whopping $395.

http://www.uspto.gov/web/offices/ac/qs/ope/fee2004 oct1.htm#patapp

If you think it's so easy to patent something, go to town. If you hire a high-powered law firm to write your patent, research prior art, craft your claims so that they are as broad as reasonable, and prosecute the patent until issue (which would include several rejections for overly broad claims and additional fees for reexamination under narrower claims) then you could spend $10k. If you're doing that, though, you're either planning to license to a company to produce your product (which you presumably have no problem with, provided you are rational) or you are planning to practice or produce it yourself (again, there should be no problems here).

One of the problems is that if you stake your claim in knowledge-space and file a patent, a large company can come along and file a hefty number of patents in every possible direction your research could go in. Sure you own the land, but they now own the access.

You plainly don't understand the patent system. A patent has to be new, useful, and nonobvious. If, given Company A's patent, Company B's engineers can invent new, useful X, Y, and Z without substantial thought, research, or development then X, Y, and Z are not patentable inventions. If X, Y, and Z are not obvious (Company B had to invest substantial research etc) then they are patentable. Why? Because we want to reward Company B for adding to our global knowledge base. Your problem is that you think, many years after the fact, that X, Y, and Z are obvious, and because they are obvious now that they were obvious at the time they were invented. You can't patent "in every possible direction," (whatever that means) you can only patent related nonobvious inventions.

Your ignorant, paranoid rantings are really quite disturbing to those of use who contribute to society, and to the onward march of technology, and wish for a system that rewards largely based on innovative merit to remain in place. The system does have some problems, and determining obviousness in software patents is one of the harrier issues, but your desire to dismantle a system that has successfully promoted innovation and prevented intellectual quagmire for more than two centuries based on a problem with a 20-30 year-old industry is unfounded.

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 :(

Repetition helps us learn. Repetition helps us...

[jbn-o]

While I can sympathize with you having to read the same objections repeatedly, this information is repeated for a good reason: it is not a part of the public's common understanding of computers and it should be. Common computer users are under threat too even if they don't know it (I refer you to Paul Heckel's threatening Apple Hypercard users with patent infringement if Apple didn't see things his way; RMS talks about it in his talk on the danger of software patents when Heckel attended one of RMS' talks). Read the transcript:

We are not the only ones threatened by software patents. All software developers are threatened by software patents and even software users are threatened by software patents. For instance, Paul Heckel, when Apple wasn't very scared of his threats, he threatened to start suing Apple's customers. Apple found that very scary. They figured they couldn't afford to have their customers being sued like that, even if they would ultimately win. So the users can get sued too, either as a way of attacking a developer or just as a way to squeeze money out of them on their own or to cause mayhem.

I doubt most people know that they could be violating the law even though they are using purchased software. I doubt most people know that some patent-unencumbered alternatives exist (Ogg Vorbis instead of MP3, for example) and work well (even on portable digital music players). We need to repeat these stories and spread awareness of free alternatives so people won't be threatened or lose a patent infringement lawsuit.

The main way to teach people new ideas is through repetition. So it behooves us to repeat the patent horror stories to help the newcomers to the free software community learn why they won't find MP3 encoders or decoders with free software OSes, for instance. It also serves as a reminder why one should use a free software system despite occasional practical difficulties--we want the freedom to share and modify software.

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

[mikael]

This is the advice that has been given to our university (in the UK) covering all possible research areas (hardware/software engineering). A good example is the Dyson vs. Hoover patent lawsuit:

Hoover to pay 4m [pounds sterling] damages to Dyson - News - in dispute over bagless vacuum cleaner

Hoover wins court battle with Dyson

Dust settles on Dyson's long battle

Forgive my use of the word "register", but I am using it within the context defined by the following article:

Business Law - An Overview of Patents

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:Ask Slashdot: How do I get laid???

[vettemph]

"Girl, you must be in /etc/fstab because I'd like to mount you"

Yep, and this is why slashdotters don't get laid http://en.wiktionary.org/wiki/Laid :)

patents now benefit only lawyers

[museumpeace]

I checked for articles on "patents" at Scientific American...they have published over 140 in the last 6 or so years counting columns, articles and letters and virtually every one of them levels scathing criticism at what stupid things we allow to be patented or how patents have retarded progress in some very important technologies [their 2001 article on how many drug companies are suing and counter suing is scary, I wish they'd just spend the money on finding the cures!] The alarm Groklaw sounds about the software industry has already come to pass in parts of the biotech industry and the solution that some of us espouse for permiting the unfettered advance of software, open source, has been embraced by Worldchanging.org and by BIOS an organization that wants, in their words, to "develop and validate a new means for the cooperative invention, improvement and delivery of biological technologies, drawing inspiration from the open source software movement to forge a 'protected commons' of knowledge and technology."
I think the thing that has kept software innovation from stalling out completely in a patent litigation tarpit has been the combination of open source and the fact that you can often bring a software idea to market for vastly less venture money than a new drug takes. Those VC's and big pharma's do all they can to see that such big gambles pay off. But trying to own and "idea" when everybody and his sister are working get an idea that solves the same problem is bound to make for friction, duplication and loose-loose litigation. If you get out there first with something people really need and you don't gouge your customers, just staying one innovation ahead of the competion can keep you in business and maybe even make you some money. One machine vision startup I worked for NEVER patented a really significant advanced technique, preferring to keep it a trade secret because they took out a patent, competitors would find a way around it more easily than they could reverse engineer it. 20 years later, they are still in business. Its much harder to spend nearly a billion dollars on a new drug and still keep it a secret until you are making sales.

Audio: R. M. Stallman's talk on software patents

[t35t0r]

I found this referenced from Groklaw and just thought it would be good for people who didnt read that far down the comments (or don't read at all) to listen. It's a very informative talk about software patents. Ogg format URL: http://audio-video.gnu.org/audio/rms-speech-cambri dgeuni-england2002.ogg

My favorite quote: " ..one engineer said 'I can't recognize my own inventions in patentese.' "

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.

Re:So will MY project infringe somone's patent?

[Oddly_Drac]

"What should I do?"

Buy a winnebago. drive coast to coast and breath in the deep unfettered air of the land of the free.

Eventually you could consider getting a job with a large corporation and eventually you might find yourself working on a similar project. Rejoice in your litigation protection, citizen.