Tim Bray Finds An Affinity Between Patents And OSS

Manuzhai writes "Tim Bray, of XML co-invention fame, is writing about software patents and Open Source software today. While he deprecates the 'business-method' patents like one-click ordering, he thinks some (Open) source code could tell the truth about a patent application: 'In fact, in an ideal world, I'd rewrite the law to allow software patents but require a working Open-Source implementation as a condition of getting one.'"

Comments

Coral Links

[Anonymous Coward]

XML
Software Patents

Re:Coral Links

[Anonymous Coward]

Troll ? , morons.

first post?

[Anonymous Coward]

I think this is a really good idea. But, the licence could not be the GNU GPL.

Re:first post?

[mefus]

I think it's an attractive idea as well, because

• It provides a working example of the patent as a clear indication of what it does, and by so doing,
• It puts the engineer/inventor back in the drivers seat rather than the patent lawyer.

By so doing it evades the "overbroad" patent, but that will also be levied against it as a criticism: it also is a stark limitation on the potential utility of the patent and can be used to restrict the patents scope.

I also think that because of that its power could also be eroded by the patent lawyers and it could be equally subject to attacks as the current system has been.

Therefore, other than the benefit of seeing the working example of the patent and being subject to searches by the engineer, it is of marginal benefit. There are many other factors contributing to the patent problem. They must be addressed as well:

• Patents are granted frivolously.
• Litigation is heavily weighted in favor of large corporations; in fact, individuals and small companies simply can't litigate.
• It is almost impossible for an innovator to know if there is a patent already covering his/her innovation.
• Patents can be used to block use of an innovation rather than encourage its use.
• Holders of "submarine" patents can deliberately lurk, predator-like, waiting for honest, unsuspecting innovators to invest huge amounts of time in already-patented technology. Straightforward and fair changes to patent law would completely change the landscape of patent litigation and innovation.

This proposal would have a marginal effect on some of these issues, but the onus of discovery is still on the public, and the individual developer. More than this suggestion is needed.

Re:first post?

[tambo]

I think this is a really good idea. But, the licence could not be the GNU GPL.

Well, there's precedent for it. The USPTO used to encourage inventors (strongly) to submit a working model of each invention with their patent application. The models would then be publicly displayed at the USPTO, partly because it's a neat idea, and partly to evidence the subject matter of the patent.

This process was deprecated a while ago, but is still present in new forms, e.g., patents claiming DNA sequences must submit an appendix containing a listing of the DNA sequence. This can be absurd and pointless in practice - I've seen patent applications containing hundreds of pages of As, Cs, Ts, and Gs - but it's a nice concept, anyway.

The pushback on making this a strongly encouraged, or even required, practice for software patents is that potential infringers have an entire, working instance of the invention that they can drop into their own products. Obtaining a software patent (after two years, at a cost of $15,000, and with subsequent maintenance costs pending) is actually the easy and cheap part of the process - finding people who are using it, and trying to enforce the patent against them, is much more difficult. It requires reverse-engineering closed-source competing products. This sucks. Withholding functional code is at least one small hindrance against secret infringement.

- David Stein

Re:first post?

[jizmonkey]

Come on, now. The patent office moved to CD-ROM listings a long time ago. I don't even think you are still allowed to submit reams-long patent specs these days.

I think the greater difficulty is that non-trivial software patents are embedded in the rest of the application. I assume Microsoft has patents on COM/OLE (Apple has some on OpenDoc) -- if they were to disclose that source code, that would involve perhaps millions of lines of code. Patent attorneys charging $10k to come up with 15 pages of text and 5 Visio charts, there's no way any of this would come from the patent attorneys, and with inventors doing nothing more than filling out a two page invention disclosure statement there's sure as heck not going to be any dummy sample code from them either.

What about patents on compiler improvements? What about a patent on the Pentium 4 bus? Would Intel have to disclose the Verilog for the entire chip?

Re:first post?

[fucksl4shd0t]

Withholding functional code is at least one small hindrance against secret infringement.

Irrelevant. The idea behind patents is that after the patent expires, the technology covered by the patent goes into the public domain. How can a software patent go into the public domain without source code to support it?

The government granting patents serves the purpose of securing the technology for wider usage. If you want to keep your invention locked up tight as a secret, you have no protection. In exchange for the protection offered by a patent, you agree to give the technology to society by placing it into the public domain upon expiration of the patent.

So why should source code be required? Without the soruce code, you could die, disappear, your house could burn to the ground, whatever, and the patent you have been granted will expire with no way of retrieving the source code so the technology can become public domain. Therefore, you should give up the source code in order to receive the patent, and the USPTO will publish it a million times (or whatever) so that it will be known. What good is technological innovation if nobody can build on it? THAT is the ultimate goal and benefit of patent.

You see, in the meantime, we *can* take the source code and drop it into our programs. We *can* take it and make it do work you didn't even imagine it could do. The fundamental principles behind patent can be found coded in the open source definition provided by the open source initiative. Stand on the shoulders of giants, and so forth.

What we can't do is produce our work commercially in the marketplace without licensing the patented technology we've used. For that we have to negotiate with you, the inventor. And that's where the incentive is to invent. Because what good is the technology if nobody can use it?

So, a patent serves several purposes all at once (it can be said they're all shades of the same purpose). 1. To provide a mechanism for new technology to achieve wider adoption by allowing small-time inventors (the guys that do the real work) to license to big-time manufacturers and distributors and so forth. 2. To secure the technology for the benefit of society. 3. To secure the designs of the technology for the purpose of researching and advancing technology in general.

As you can see, only one of the purposes of patent provides a way for an inventor to make money. The other purposes are about securing the technology for society. We've come to believe, as a society, that the only purpose of a patent is to make money, and that's patently false. The only purpose of a patent is to secure new technology for society. The mechanism is uses is "making money". It could use a different mechanism, but I doubt a different mechanism can be found that would be more effective in the free market.

Re:first post?

[fucksl4shd0t]

What about patents on compiler improvements? What about a patent on the Pentium 4 bus? Would Intel have to disclose the Verilog for the entire chip?

A little application of the scientific method works wonders. :)

The proper disclosure should be (and used to be) whatever is needed for a reasonably competent peer in the field to duplicate the invention by their own means. So you would provide designs of a flex-wing used to steer an airplane, but let the reasonably competent peer provide the canvas, frame, cables, and so forth, and build the thing themself. You should be able to take what the patent office has on file, acquire needed supplies, and build the invention.

So for source code you should provide makefiles and so forth that build on the system you developed it. Another programmer should be able to acquire a system identical to yours and build it. To build it on a dissimilar system, it is reasonable that the other programmer should have to modify makefiles and source code, I think. Others may disagree on this specific, but I think it's unreasonable to require an inventor to ensure that their invention can be built on the widest variety of platforms available, and there is room to argue that they should only have coverage on the supported platforms at the time they apply for the patent.

My only point being that for intel to get a patent on the Pentium 4 bus, they should have to disclose whatever information it takes for someone to build a Pentium 4 bus, whatever that information actually is. If building a Pentium 4 bus requires a Pentium 4 which is also patented, there's no problem to build the bus because you just retrieve the information for the Pentium 4 and build it too.

Re:first post?

[jizmonkey]

The proper disclosure should be (and used to be) whatever is needed for a reasonably competent peer in the field to duplicate the invention by their own means.

What you say is true. The question is whether mere programming according to a high-level plan is within the ordinary skill of the art. The Federal Circuit in Robotic Vision Systems said that it is. Most developers would disagree with that assessment, including me.

Now your statement is that a developer should submit anything required to make the sample code go. Say the sample code is for a new kind of peephole optimization in a compiler. You say that the developer should make that code runnable.

My contention, which you didn't disagree with, is that complex programs cannot be broken down. This peephole optimization function would rely on the rest of the compiler to work. It would be possible to make it work on its own, but I remarked that neither the patent attorney nor the inventor would have the time or wherewithal to adapt the function to standalone use.

I shouldn't have said the Pentium 4 bus because it confuses things too much, mostly because I was mixing semiconductor patents and software patents (they have effectively the same public policy issues). What I meant by that is: A pentium 4 bus is exceedingly complex to design. If the inventor is required to submit Verilog code to make the Pentium 4 go, the only practical way to do that is to submit a good chunk of code for the Pentium 4 itself, most likely all of it. Not the chip itself - we're talking about a part of the chip, and if we're disclosing plans for someone else to make a chip that can talk the same way as the P4, it doesn't do any good to just tell them to go buy a Pentium 4.

That will never happen. No patent is worth describing all of the internals of a state-of-the-art compiler or CPU.

I must confess my initial response was drawn by the old-fogey grandparent complaining about sequences being published on reams of paper, which hasn't been true for a long time. Either he's not a patent attorney, or he doesn't practice much.

Re:first post?

[fucksl4shd0t]

My contention, which you didn't disagree with, is that complex programs cannot be broken down. This peephole optimization function would rely on the rest of the compiler to work. It would be possible to make it work on its own, but I remarked that neither the patent attorney nor the inventor would have the time or wherewithal to adapt the function to standalone use.

I don't see why it should have to work on its own. Consider your optimization function is to be used in GCC. GCC is open source, so you merely (heh) have to cite where the function belongs in GCC in your patent application, and provide the code for your function. Now let's say GCC is patented itself. You cite GCC still, but you also provide a patent number. (For simplicity's sake I reduce it to one patent, but you can easily visualize thousands aroujnd GCC alone in this scenario) Now let's say GCC is not patented, proprietary, and kept closed. You *can't* patent your function without providing GCC. If you want to patent your function, the technology needed to run it must already be available for use. The open source GCC is ok (even if there are problems with a patent and the GPL, let's ignore those because it'll only cloud our discussion). The GCC patented is ok. In both cases GCC itself is available for someone to use your patent for research. GCC locked up as a trade secret is not ok, because in order to use your function we need GCC open somehow. If GCC is locked up, there is no benefit to society to grant a patent on your function, therefore no patent can be granted.

Make sense?

A pentium 4 bus is exceedingly complex to design. If the inventor is required to submit Verilog code to make the Pentium 4 go, the only practical way to do that is to submit a good chunk of code for the Pentium 4 itself, most likely all of it.

not necessarily. Let's look at it again the same way we looked at the compiler optimization. If the parts of the Pentium 4 that you need in order to make the bus are open (by open I mean patented is open, the documentation is there), then you can get a patent on the bus. If it's open and not patented, you can still get a patent on the bus. If the P4 is locked up entirely, you can't patent the bus. If the bus patent depends on the P4, then the P4 has to be open, somehow. It can be public domain, it can be patented. Going down the chain we find the motherboard chipset, the board itself, and various other parts all need to be open in order for you to get your patent on the bus, because each part, starting at the bottom and working its way up, has to be open for the next piece to be patented.

The obvious metaphor is the house-building brick-laying thing. Foundation, first layer of bricks, etc. No need to get detailed on a worn-out metaphor, eh?

That will never happen. No patent is worth describing all of the internals of a state-of-the-art compiler or CPU.

The point of a patent being to keep the technology open in the sense that others can build on it, with commercial viability being determined by the market and a commercial edge given to the patent holder. So the only situation where you'd have to describe the internals of the compiler or the CPU is the situation where those internals aren't already available. So you could reference an ISBN number of a book that describes the P4 in such a way someone can build one. How about if the instructions you need to build the bus aren't tied to the P4? So i could build another processor different than the P4, different design, even a different set of patents, but uses the appropriate instructions needed to communicate with the P4 bus. (I think this event has already happened numerous times in the history of Intel and its knock-offs)

Ack, I'm just repeating myself now. :) Your turn.

Re:first post?

[jizmonkey]

If I understand correctly, you're saying how you would like the system to work. What I am saying is that this change, despite its intuitive appeal, is so radical that it would never be adopted.

Effectively it would kill software patenting (which I'm all for), but if we're trying to do that it's just as easy (nearly impossible) to ban software patents outright. The bottom line is that a lot of big political players make bank on software patents, and this kind of change would never slip past them.

Your example of GCC shows that this would work fine for open-source software, but no closed source vendor would go for it. For closed source vendors to patent anything, under this proposal, they would need to reveal much more than the invention at issue.

I think you understand the enablement and written description requirements (and the former model requirement) of patent law pretty well, but there's no need to rehash it for my benefit. I've worked on both sides of the engineering / patent law fence.

Re:first post?

[fucksl4shd0t]

Yeah, this is how I'd like it to work. :) I'd really like to get back to what patent law was originally intended for. It may have been in this thread, or another, that I said it, but I'll say it again. It's become common wisdom that patents are all about making money, and they're not. That's just the mechanism used to secure technology for the benefit of society. Let's get back to patent law being about the benefit of society, using a mechanism that works very well in the free market.

It is my opinion that when you return patent law back to the benefit of society, then software patents will require source code at the very least. If that kills software patents, fine. If it doesn't, fine. It'll at least make software patents a little more practical.

There are numerous problems with the system. Awhile back I interviewed Monty of Xiph on it, it's on my website. I think we covered many of the problems surrounding software patenting pretty thoroughly. Of course, neither of us are lawyers, but we're both interested in the subject so it's not like we know nothing. We just don't know enough to practice law on it, and iirc patent law is one of the only (or the only) specialization in Law, and you get in big trouble if you don't actually know what you're doing. ;) In any case, I don't think that just requiring source code for software patents is going to fix anything at all. It might reduce some of the abusive patents filed, but it won't fix the general abuse problem. Software is an area where we see the abuse acutely, but it's hardly the only area where abuse is occuring. :(

Re:first post?

[tambo]

The idea behind patents is that after the patent expires, the technology covered by the patent goes into the public domain. How can a software patent go into the public domain without source code to support it?

Uh, because the patent discloses the invention with sufficient clarity to allow one of reasonable skill in the art to make and use the invention for its intended purpose without undue experimentation.

Those words - from memory, but practically verbatim - comprise one of the core requirements of a patent application. If you don't do that, your patent application is rejected. (Now, the question exists whether or not that requirement is being satisfied for the software arts. But any problems of this kind are related to a poor implementation of a sound principle, and the USPTO is working to improve that.)

In short: For any true software invention, I don't need source code to understand what's going on. I just need someone to explain the functional principle to me, and then I can go code it up in my language of choice. You have a new and more efficient hashing algorithm? Great! Tell me what it's doing differently.

If your invention is so heavily dependent on a particular implementation that one need the source code to make it work, then it's not much of an invention.

So why should source code be required? Without the soruce code, you could die, disappear, your house could burn to the ground, whatever, and the patent you have been granted will expire with no way of retrieving the source code so the technology can become public domain.

But which is harder: Reading about the functional principles of an invention and coding an implementation, vs. hashing through someone's undocumented source code to figure out what it's doing? I maintain that the latter is, on average, far more difficult. Most interesting code still gets wrapped in many layers of trivial or unrelated code; logically teasing them apart can feel like conducting brain surgery.

Here's my concern about your principle: It is commonplace and easy to implement even a very simple software concept as a convoluted, obfuscated tangle of spaghetti code. Hell, that's the whole reason anyone uses Perl. ;) This is frequently done to protect a trade secret, and sometimes to ensure the coder's job security. If we require source code to accompany software patents, software patentees have every incentive to provide code that is completely functional, but completely impenetrable by people without a lot of work.

Consequently, the poor patent examiner, already balancing the software concept against prior art against the entire contents of the MPEP, must now also strive to make sense of intentionally obfuscated code. If he complains, the patent applicant will put forth the argument that the code demonstrably works, and will assert that the examiner is just technically incompetent. The examiner will likely not be able to counter that argument, and will just allow the application.

You think the state of software patents is bad now? Wait until it's flooded with thousands of patents, undoubtedly entitled "Software process" or something similarly vague, stapled to thirty pages of intentionally bungled source code.

You see, in the meantime, we *can* take the source code and drop it into our programs.

Is that the goal of the patent system - to produce a bunch of working models that we can copy and set into motion without comprehension? In that case, why not just register the copyright for your source code? Everyone gets your source code, but you keep the rights to it - that's exactly what copyright does.

Patents are intentionally removed from a specific implementation - they focus on the underlying principle. If explained in sufficient clarity (as required), the principle can then be taken away and used in any implementation (subject to the limited-term rights of the invento

At least...

[mirko]

sombebody's who doesn't agree proposes a constructive solution.
I like it provided there's no more 1-click-purchase involved.

Re:At least...

[Halo1]

Plenty of alternatives have already been proposed. The problem is that patent lawyer associations simply do not want any changes that could substantially reduce the number of granted patents (see points 6 and 10).

Besides, this proposal has a problem of its own: software patents can include so-called "program claims". In that case, not just the use of a program which infringes the patent, but also the publication of such a program can be forbidden. Many software patents (and even non-software patents) are starting to include those.

If you start adding source code to patents, then those patent descriptions themselves can infringe on other patents. It's completely silly since the patent system is supposed to encourage publication of information, but nowadays it can also be used to for forbidding publication of information (because some people think software is the same as a "machine", instead of simply a description of something).

Re:At least...

[smittyoneeach]

If publication is forbidden, what is the effect upon 'prior art'?
Now I pour years into my (supposedly) new variation on the theme of moving information in a binary sort of way, and someone pulls something from their colostomy-bag of tricks?
Or is this another one of those new 'security' things I keep hearing about?

Re:At least...

[Halo1]

If publication is forbidden, what is the effect upon 'prior art'?

Nothing. Even if there is no program claim on some method described in software, people can still develop it and not publish it. The only thing is that patents with such claims can be used to forbid all "computer-interpretable" publications of descriptions of the patented "process" (regardless of whether this is a chemical process or 1-click shopping).

The reason is that in case of a program claim, you do not get a patent on "a computer which, when a program is loaded into its memory, executes the following steps: ...", but on "a computer program, stored on a carrier or in a network, which, when loaded into a computer memory causes the computer to execute the following steps: ...".

So all computer programs which contain the patented process are patented as if they were objects (by adding the "carrier" stuff, to turn the immaterial programs into material entities). It's a bit like trying to work around the non-patentability of a text describing how to perform a chemical reaction by trying to patent a book (or any other carrier) containing that same text.

Now I pour years into my (supposedly) new variation on the theme of moving information in a binary sort of way, and someone pulls something from their colostomy-bag of tricks?

No, because only published prior art counts when assessing the novelty of a technique someone wants to patent.

Re:At least...

[smittyoneeach]

What Whitman said of the government is trivially extended to the legal system.
You are warned.

Eliminates patent benefit.

[Anonymous Coward]

But doesn't that just eliminate the benefit of a patent?

Re:Eliminates patent benefit.

[BaldGhoti]

Works for me.

Re:Eliminates patent benefit.

[Jondor]

No, imho the patent eliminates the usefullness of the open source implementation..

Re:Eliminates patent benefit.

[maxwell demon]

No, because despite having the source, you may not just use it due to the patent (after all you wouldn't even be allowed to use it if you had written it yourself). Therefore for the duration of the patent, it eliminates the benefit of open source. Of course after the end of the patent period it will recover the OSS advantages - unless at that time it's obsolete anyway.

Re:Eliminates patent benefit.

[DigitumDei]

No. The point is anyone can look at it, anyone can use it, if they want to make money off it, they have to pay up.

Given that there is concrete evidence for what the patent is about (the source code), it becomes much harder for companies to claim that patents have been violated. It also becomes harder for patents to be put forward for such simple stuff as "one-click purchasing", patents would then have to be awarded on innovative algorithms.

Re:Eliminates patent benefit.

[DrSkwid]

A patent was supposed to grant you a monopoly on your invention in return for describing said invention such that when the King decided your monopoly expires then other members of the kingdom could share the knowledge.

Thus when source code is the documentation one could argue that presenting such code is *already* a pre-requisite.

Re:Eliminates patent benefit.

[Anonymous Coward]

In fact, this is more like the way patents work in real objects. Take a car engine for instance.

You can patent parts of the engine. Everyone can look at how you did it, and maybe create a better solution for it. The only thing patent protects the owner from, is using the same exact implementation in products that are sold for profit.

IMHO this is an excellent proposition

Re:Eliminates patent benefit.

[DigitumDei]

It would be nice if the patent law was modified to make it so anyone can use your patent, they are just forced by law to give a set percentage of their income from that patent to the patent holder.

I suppose this would be open to abuse, but the benifits from this as I see them are that patent holders cannot hold back use of the patent but they are guaranteed to gain from its use.

Re:Eliminates patent benefit.

[gbjbaanb]

It doesn't have to be 'free open source', just open and source.

ie. The patent applicant not only has to write some code showing how his invention works in detail, but also has to show it to anyone who wants to see it. Those people who see it may not use it in their own applications (or they'd be violating the patent) so all the benefits of having a patent apply, but no-one would be able to patent anything that didn't have a concrete implementation (like 1-click for example).

I think that's the idea, but if you think about it - if you wrote code for 1-click, either you'd be restricting people from using the same techniques but they could implement 1-click in a different way, which I think does invalidate the idea of a patent after all.

Imagine I come up with a novel way of toasting bread, and I have to create my 'toaster'. If patents are to work, that'd have to stop other people from inventing the 'grill'. If that is true, then my way of implementing 1-click would stop other people from implementing 1-click in their own way.
The alternative, if my software only applies to my way of doing 1-click, then someone could legally invent the grill even though I have the toaster patent.

(I think I'll go lie down and wait for someone knowledgeable about patents to tell me what I mean :) )

Re:Eliminates patent benefit.

[Anonymous Coward]

And just out of curiosity, what happens when you write a piece of software which uses 11 patents, all of which are guaranteed 10% of the profits?

Re:Eliminates patent benefit.

[Jim_Maryland]

May work for you, but what about the company that invested in the discovery? Do you believe they should be compensated for the money invested in the discovery process? I realize some patented ideas are very obvious, but some are for ideas that required some real effort/money and should allow for some level of reward. I realize that some people are motivated to innovate for the sake of innovation, but many innovate for the rewards.

Re:Eliminates patent benefit.

[DigitumDei]

Well for one I don't think making it 10% would be silly.

But even today, writing something which uses a large number of patents becomes prohibativly expensive.

Of course they could put an upper cap on the amount, so 1% (pure thumb suck number) could never be more than $10 (another thumb suck number).

Re:Eliminates patent benefit.

[Anonymous Coward]

Erm, I meant to say: I think making it 10% would be silly.

Re:Eliminates patent benefit.

[Anonymous Coward]

That's exactly how patents are suppose to work. You can patent a 'toaster', and I can buy it, pull it apart and see how it works. If I think I can come up with a better way, I can innovate and sell a 'grill', but I can't make a cheap toaster knock-off.

Patents were orginally designed to encourage new innovations and protect those that were made from being cloned, not as a way to block competition to hold onto a market... they actually have anti-monopoly laws to stop that.

Re:Eliminates patent benefit.

[sfraggle]

Actually it negates the usefulness of Open Source. Infact the whole idea proposed is a contradiction in terms. Read The Open Source Definition:

1. Free Redistribution
- The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.

If a patent is restricting the use of the code then it is not Open Source. If it cannot be used then it is really no different from a software company releasing a proprietary closed source .dll containing the implementation of their patented algorithm. Ultimately he is just promoting describing the patent in a different way. Any competent engineer should be able to implement an algorithm from a well-written patent description anyway - while useful the source code would ultimately be redundant.

Tim has missed the entire point of the patent debate.

Re:Eliminates patent benefit.

[ajs318]

what about the company that invested in the discovery? Do you believe they should be compensated for the money invested in the discovery process?

NO. I do not believe that anyone deserves automatic compensation for anything they do. The benefits of all human endeavour rightfully belong to all of humanity.

I realize that some people are motivated to innovate for the sake of innovation, but many innovate for the rewards.

We can live without those who are only in it for the money. The fact is, in every field of endeavour, there are people who are in it for the "right" reasons. Even if someone did not throw millions of pounds at a problem just in the hope of earning billions of pounds as a consequence, someone else would be bound to make the same discovery sooner or later {and given the number of demonstrably independent, but almost simultaneous, inventions, I would say sooner rather than later}.

In any case, the traditional model of a patent is absolutely inapplicable to software. The original purpose of a patent was a compromise deal between an inventor and a government {acting as a representative of Society}. The problem was that an inventor might have exhausted their capital developing a working prototype; if they now show this directly to an established manufacturer, the manufacturer might decide to cut the original inventor out of the loop; whereas if they approach a {non-technically-minded} banker hoping to obtain a loan on the strength of the invention, with which to set up their own factory to make it, the banker might not be convinced of its viability. So the Patent Office was set up, to give inventors an official letter precisely describing their invention, and granting them a time-limited monopoly over it. This can be used as proof that the invention works {to obtain financial backing} and as a description of how to make it {to obtain manufacturing services}, but it also specifies a date after which the invention is to be given to society at large for the benefit of everyone. If the invention is a good one, then any loan should have been paid off long before such time.

In the case of software, where the cost of reproduction is essentially nil, the inventor is not prevented by financial constraints from further developing their idea beyond the prototype. So the original need for a patent is absent.

Re:Eliminates patent benefit.

[91degrees]

Compulsory licensing is a nice idea, but I don't think anything quite so simple would work. Some standards organisations have a concept of "Reasonable and Non-Descriminatory" licensing, which may be possible to apply to all patents, but while a standards committee can be fairly arbitrary when it decides what's reasonable, the legal definition has to be a lot more specific.

Re:Eliminates patent benefit.

[91degrees]

If a patent is restricting the use of the code then it is not Open Source.

This is the sort of reason that the FSF makjes a distinction between "free software" and "Open source". It is open source (because the source is available). It isn't free software (because its use is heavily restricted).

Re:Eliminates patent benefit.

[Jim_Maryland]

In the case of software, where the cost of reproduction is essentially nil, the inventor is not prevented by financial constraints from further developing their idea beyond the prototype.

You mention the cost of reproduction, but what about the cost of discovery? If a person/company invest time/money into development of a unique software concept, what allows them to cover the cost of time/money for the discovery process? Should this person/company be able to recover the cost of time/money at all? I'm gathering by your posting that individuals should figure to not to recover any of the investment of discovery. In that case, do you have any software ideas that I can market? I don't know about you, but I have financial responsibilities to my family.

but it also specifies a date after which the invention is to be given to society at large for the benefit of everyone.

I totally agree with you on this. A patent on an idea should allow the inventor a reasonable time period to recover the price of discovery after which it should become public domain.

FYI, I'm not involved in patent type work, so I'm not trying to justify any work I'm doing. I can just appreciate some of the protections offered under the patent system. I'm not saying the system is without flaws and I certainly don't claim to understand much beyond the basics of patents.

Re:Eliminates patent benefit.

[spectecjr]

We can live without those who are only in it for the money. The fact is, in every field of endeavour, there are people who are in it for the "right" reasons. Even if someone did not throw millions of pounds at a problem just in the hope of earning billions of pounds as a consequence, someone else would be bound to make the same discovery sooner or later {and given the number of demonstrably independent, but almost simultaneous, inventions, I would say sooner rather than later}.


What do you do for a living?

Re:Eliminates patent benefit.

[dgatwood]

If they create something that is useful, they should have no trouble making money off of it. It's called marketing. The Internet has made this so many orders of magnitude easier that the argument of recoverting monetary costs is essentially moot. Therefore, any income from the product goes towards recovering the cost of time. If the software is useful, they'll do fine. If it isn't, they won't.

It's not like somebody can just turn around on a dime and duplicate a non-trivial piece of software and sell it as their own. Copyright already protects against outright copying, and creating a knock-off takes time and resources, during which time any decent product should have made enough money to cover the amount of time put in.

However, if all you did was create a new, ingenious algorithm that has no financial viability, you don't inherently deserve to be compensated just because somebody else was able to come up with something similar and do something useful with it. It is the responsibility of the software's creator to find a way to sell a product in a timely fashion.

Everyone needs to pick up at least a certain level of marketing skills to survive in the tech industry. The sooner people realize that, the sooner tech patents will be seen as they truly are: unnecessary.

Re:Eliminates patent benefit.

[Jim_Maryland]

I hadn't considered the Copyright aspects of this. In most cases, your probably right that the companies could make back their investment but at the individual level, this might not be true. If you take a very small company that creates a very desirable (new/unique) product, they may not be able to ramp up marketing/sales as fast as a huge company that realizes the benefits of the product and duplicates it with it's resources. The huge company could easily take the idea and surpass the originator before they can recover. Using a patent should provide a limited amount of protection, particularly in the case of an individual or small company.

As for someone someone coming up with a similar idea (you don't inherently deserve to be compensated just because somebody else was able to come up with something similar and It is the responsibility of the software's creator to find a way to sell a product in a timely fashion.), who determines how much time a person/company has to recoup the investment cost? Some companies have the resources to do this at a much quicker pace than others so should they get the advantage? If so, would you forsee a decline in business startups due to the likelyhood that they would be driven out by high development cost with a very high risk of not being able to recover that development cost due to weaker marketing?

Re:Eliminates patent benefit.

[ajs318]

The original aim of the patent system was actually quite a noble one. An inventor is at a disadvantage compared to an established manufacturing company -- so a compromise is struck, in an attempt to artificially reduce this disadvantage, by offering limited exclusivity to an inventor in exchange for their invention being presented for the benefit of all of society. The "fairness" of the compromise depends upon the duration of the limited exclusivity. If it is too short {in the limiting case, no exclusivity at all} then it leads to a situation where the ones with the money get all the benefit from new inventions. If it is too long {in the limiting case, forever} then it leads to a situation where nobody can invent anything new for fear of infringing upon a prior patent.

So there is evidently a balance to be struck somewhere -- a point where the exclusivity protects good inventors, allowing them to offset their investment before the benefits of their invention are released to everyone, but does not create a climate where innovation is discouraged for fear of infringement.

And some things just should not be patentable anyway. IMHO these include, but are not limited to, chemical formulae, mathematical processes, business methods, and anything which can be shown as the sole means to a particular end {otherwise the patent would effectively cover the end, not just the means}.

I'm also not keen on the idea of allowing the temporary privileges {they are not strictly "rights" in the sense that they are granted artificially, as part of a compromise deal} conferred by a patent or copyright to be permanently transferred. However, I don't see a problem with using so-called "intellectual property" {by which I mean such privileges considered as a desirable commodity} as collateral security for a loan {which could be used to finance development of an invention beyond the prototype; or market a book, recording, movie &c.} -- the lender would have to understand that the privileges are time-limited, but in the case of a genuine innovation with commercial viability this should not be a deterrent. The time limitation would be no different, in practice, from accepting perishable goods as collateral. And of course if the loan is repaid in full before the expiration of exclusivity, then the privilege would be transferred back to the copyright / patent holder.

Re:Eliminates patent benefit.

[fucksl4shd0t]

I hadn't considered the Copyright aspects of this.

Let's keep in mind that Copyright and Patent represent the same fundamental concepts. Copyright is the concept applied to Creative Works, such as music, works of fiction, and so forth. Patent represents the same concept applied to technological invention. They are not intended to be applied to the same thing.

So in the case of software, according to the intent of the law, it should not be possible to copyright and patent the same part of the software. So where's the split? both the source code and the compiled binary (if there is one, interpreted languages and byte-compiled languages blur the distinction) require a computer to interpret and process, the binary is just closer to the metal than the source code. But software does work, which is what it appears is the difference between a Creative Work and an Invention. A Creative Work doesn't do work, it is the result of work, whereas an invention does work of some sort. Software definitely fits the mold of invention in that regard, insofar as it has the right gear to interpret it. Remove the gear and the software is worthless.

OTOH, source code also represents the design portion of an invention. Or at least part of it. Using the source code directly, reading it, and understanding it is part of building on it to make more software. In the old days you could do the same thing with the binary directly, but it's not so anymore. Furthermore, there are numerous language (Perl, anyone?) that do get interpreted directly, so source code in those languages acts as both the invention itself and the design of the invention. (By "design" I'm generally referring to the position occupied by drawings and so forth in a physical invention) Finally, there are still other languages that use byte-compiling, and at least one of them byte-compiles transparently to the user (Python)! I can't even begin to figure out the relationship between the source code and the part that actually does work there.

The fundamental question shouldn't be "Patent, copyright, or both?" It should be "What is the appropriate mechanism to encourage software development innovation in order to secure the software developed for the benefit of society?" The answer to that question may not even be patent or copyright, but will be an application of the same concept that underlies both patent and copyright to a new platform for invention and creativity.

Hum?!

[Jondor]

Sounds more like a "shared source" (look, don't touch) than "open source" to me.. Especialy the freedom part doesn't seem to be there as the open source implementation is needed to get a patent. So the contents is patented and unusable as open source.. Or did I mis something here?

Re:Hum?!

[Synistar]

Although the code would be usable in areas not covered by the patent law of the coutry it was patented in.

Re:Hum?!

[JanneM]

I think the idea was that free use of the patent would be granted for the open source implementation (pretty much a prerequisite of releasing it as OSS, as you point out). If you want to make a closed implementation, you'd have to negotiate licensing as usual.

Re:Hum?!

[cperciva]

Or did I mis something here?

Aside from the second 's' in "miss", yes.

Patents are supposed to give sufficient detail to allow someone "skilled in the art" to reproduce the invention. Almost all "software patents" miserably fail at this task.

Requiring that working source code be provided would avoid the current situation where patenters obtain legal patent protection while still retaining effective secrecy.

Re:Hum?!

[Qzukk]

I suspect that the idea really is somewhere about like that, until the patent expires. Then the published code would enter the public domain and anyone can use it for whatever, open or closed. Either way open source is a bit of a misnomer since nobody is free to use it in the first case, nor is there licensing to ensure that derivative works remain free after the patent expires (though the original code would remain public domain).

Re:Hum?!

[mdfst13]

"Sounds more like a "shared source" (look, don't touch) than "open source" to me"

Yes, but after the patent period expires, the source would be public domain. I.e. during the period of the patent use of the source is restricted (and would be even if the source was not in the patent). Afterwards, use of that source would be unrestricted.

Also, if you obtain a patent license, there is nothing keeping you from modifying the code during the patent period. It's not Free, but it is open. However, I think that Mr. Bray was using open source only to mean visible source, not modifiable source. One would not be able to use the code in F/OSS projects.

Re:Hum?!

[Khalid]

I might be wrong, but I believe the USPTO don't even require any working prototype to patent a software anymore; you just need to say "I have invented (in fact imagined) a software, or a business method, which does, this and that" to have-it patented and leave it to court to decide if it's really valid or not !!

scary !!

Re:Hum?!

[CaptnMArk]

>Yes, but after the patent period expires, the source would be public domain. I.e. during the period of the patent use of the source is restricted (and would be even if the source was not in the patent). Afterwards, use of that source would be unrestricted.

Patent period != Copyright period (Thus: requirement for FOSS license)

This would work quite well if software patents would be restricted in time, to say 5 years or something.

Re:Hum?!

[Jondor]

May be, but why call it "open source"? There's nothing open about the source besides being able to look at it.. The fact that i can turn it into wallpaper still makes it useless for what I consider open source..

Re:Hum?!

[querencia]

Almost all "software patents" miserably fail at this task.

Actually, about 1/3 (from my experience) miserably fail at this task. In the case of the other 2/3, practically everyone "skilled in the art" already reproduces the invention as a regular part of the job. The "sufficient detail" requirement of most software patents isn't satisfied because reproduction of the subject of the patent is already a standard part of engineering practice. It would look foolish to include an implementation, especially when college textbooks ship with similar code.

The real problem scenario with software patents today is not when a company patents something and the rest of the world says, "Wow, I can't reproduce that!" The real problem is when a company patents something and everybody says, "I've been doing that for six years now."

The idea of requiring source code in patents has value. But the value is not in satisfying the "sufficient detail" requirement. The value is in restricting software patents to a particular implementation. If you provide source code for an invention, and someone else cannot show prior art or come up with an implementation that is not "substantially similar," then perhaps the inventor deserves a patent. If you patent the source code for a hyperlink, however, it had better be some damn good code for the patent to be worth anything.


IANYL (I Am Not Your Lawyer)

Novell

[Anonymous Coward]

Well, with Novell now throwing its substantial patent portfolio behind open source, and Microsoft having promised they won't use their patents to crush open source, I don't see what all the fuss is about.

Perhaps if slashdotters relied on a software patent as their primary source of income, as I do, they wouldn't be so critical of them.

Re:Novell

[Golthar]

Where did Microsoft promise this?
All I can remember them saying is that they will use their patents as a source of revenue (which can be construed as not going after open source projects per se as there is little money there)

Re:Novell

[0x0d0a]

Wow. Novell just did something that

a) They're good at.

b) It's hard for the FOSS community to do.

c) Helps the FOSS community a lot.

I think I speak for just about everyone when I give a hearty "Thanks!" to Novell.

Perhaps if slashdotters relied on a software patent as their primary source of income, as I do, they wouldn't be so critical of them.

[Sigh] Yes, this is always where the argument gets uncomfortable, because you're forced into a position of attacking someone's current source of income, and that pretty much always makes people unhappy.

You're posting AC and didn't link to the patent, so I assume that you don't want people to know who you are. This is a little unfortunate, since I have to be abstract. However, I can say that, despite reading a number of software patents, I have seen not one idea that I would consider novel enough and intelligent enough in software to warrant a patent -- stuff that wouldn't have been produced without a patent in place and that actually helps mankind. The RSA patent qualifies as a non-trivial, very helpful patent, but the ideas behind RSA were developed without a patent as a driver, more as a personal interest. It is possible, of course, that RSA would not have been publicized in such an event, though, so I'll give RSA a pass. Other than that, though, I've seen a huge flood of bullshit patents. If I go to the USPTO and search for "computer", the hits that come up are a mass of ridiculous, obvious (in the conventional sense, not the legal sense unfortunately used to determine patent validity) patents.

So, I can't see your patent and say "that should really not be a patent". However, I don't understand why, if you have the ability to come up with a new mechanism, you can't simply implement it and make money from that.

Re:Novell

[Wolfbone]

Novell aren't throwing their patent portfolio behind open source, they're throwing it behind themselves and their customers. Microsoft has promised nothing substantial afaik and even if they had you'd have to have been born 10 minutes ago to swallow it.

As for your last remark, well... Perhaps if slashdotters relied on providing spamming services to viagra and penis enlargement companies, as I do, they wouldn't be so critical of spam.

Re:Novell

[Wolfbone]

Please don't use RSA as an example of a 'good' software patent - it is one of the worst. The ideas behind it are purely mathematical and the cryptographic use of the algorithmic form of the trivial lemma rediscovered by R, S and A is truly simple and obvious.

Re:Novell

[JanneM]

"Perhaps if slashdotters relied on a software patent as their primary source of income, as I do, they wouldn't be so critical of them."

Not a very good argument, is it?

"Perhaps if slashdotters relied on closed source apps as their primary source of income, as I do, they wouldn't be so critical of them."

"Perhaps if slashdotters relied on heroin sales as their primary source of income, as I do, they wouldn't be so critical of it."

Re:Novell

[maxwell demon]

Perhaps if you didn't rely on a software patent as your primary source of income, you would be more critical of them.

Of course if your income depends on something, you'll be automatically biased. But the fact that you rely on it doesn't mean you should.

To make an extreme example: Say, in some country there was passed a law. This law states that you can get a killer license (which are sold in a limited amount by the state), and after aquiring that license, you are allowed to kill about everyone you like (with some exceptions for government members and similar). Some people bought those licenses and now legally make a living as professional killer. Of course there are people against this law, but the killers just say: "If your income depended on killing other people, you wouldn't be so critical about it." Now, would this killer convince you?

Note that I don't equate software patents with killing people (while pharmaceutic patents indeed can cause the death of people in some cases), but this is just to demonstrate that the fact that you rely on it as primary source of income doesn't tell anything about if it is right or wrong to have it.

Re:Novell

[julesh]

Well, with Novell now throwing its substantial patent portfolio behind open source, and Microsoft having promised they won't use their patents to crush open source, I don't see what all the fuss is about.

Perhaps if slashdotters relied on a software patent as their primary source of income, as I do, they wouldn't be so critical of them.

That's an entirely separate issue, about protecting OSS from claims of patent infringement.

This article, on the other hand, is about changing the way software patents are issued in order to make them more fair. And believe me, they aren't fair at the moment, because the inventions are usually described in extremely vague terms that inventors in other fields would not be allowed to get away with (and are usually required to produce detailed engineering drawings, etc, of the invention).

Re:Novell

[Anonymous Coward]

If push came to shove, the open source world could engineer around "mathematical" or "algorithmic" patents. It's the implementation patents like "One Click" or UI widgets that are more problematic.

Re:Novell

[chaoticset]

Well, with Novell now throwing its substantial patent portfolio behind open source, and Microsoft having promised they won't use their patents to crush open source, I don't see what all the fuss is about.

The fuss, friend, is that Microsoft is probably lying.

Perhaps if slashdotters relied on a software patent as their primary source of income, as I do, they wouldn't be so critical of them.

Perhaps if you didn't rely on them you'd understand their flaws.

Re:Novell

[rts008]

You are NOT convincing AT ALL! Posting anon. tells me that you are not to be trusted, therefor ANYTHING you say (don't matter if I agree with you or not) is not worth taking seriously. If your sincere, and believe in what your saying, why not "stand up and be recognised" and have your say. P.S. why do you think anonymous posts are labeled "Anonymous COWARD"? BTW, can you substantiate your remark:"... and Microsoft having promised they won't use their patents to crush open source..."?

Re:Novell

[Wolfbone]

The open source world generally develops software because it is interesting and rewarding work. Free to implement their ideas and build on the work of their peers, they create some of the world's finest software. But how much longer will being a free, open source software developer seem like an attractive proposition when one has to spend most of one's time trying to work around patent encumbered 'open standards', patents on fundamental and often trivial mathematical techniques you can read about in the yellowing pages of a 15 year old textbook, or fields completely sewn up with patents from the most elementary concepts onwards - like fractal compression, or arithmetic coding:
http://www.faqs.org/faqs/compression-faq/ part1/sec tion-7.html

Re:Novell

[Anonymous Coward]

This law states that you can get a killer license (which are sold in a limited amount by the state), and after aquiring that license, you are allowed to kill about everyone you like (with some exceptions for government members and similar).

I can't imagine anything more awesome. Thanks, man!

public patent license

[AeiwiMaster]

I think a way to handle the patent problem
is to make a patent license which work with patent law
as the GPL work with copyright law.

Re:public patent license

[cpt kangarooski]

These exist, but they would not solve the problem.

Re:public patent license

[AeiwiMaster]

Could you post some links, so I can verify your claim ;-)

Re:public patent license

[cpt kangarooski]

Here is a google cache of part of a license. The relevant bit is the grant-back clause.

Basically it works like the GPL. A licensee can use the licensor's patented invention provided that, among other things, he grants back to the licensor a right to use any relevant improvement patents the licensee invents.

Tweak it a bit, and there's your GPL for patents.

But it doesn't help much, since the scope of patent protection is amazingly broad, and most people willing to invest into getting patents aren't likely to then want to let everyone use them. So so long as any GPL-Patent developer could still stand a good chance of infringing a non GPL-Patent invention, the problem remains.

Re:public patent license

[sab39]

You need to go a little further, I think.

You need to require that the licensee grants to *everyone*, not just the licensor, a right to use all their patents used in the same product as the licensed patent (I'd like to say "all patents owned by the same person" but that's probably impractical) under either the terms of the "PGPL" or under completely unrestricted terms.

This is more like the actual behavior of the GPL: As soon as you combine GPL code with something else into a single product, you're required to distribute the whole thing under the GPL. Similarly, this proposed license would say that as soon as you use this patent along with some other patented technique in the same product, you have to release the other patent under the same terms.

Now, if IBM and Novell could both be persuaded to license their entire patent pools under terms like these, we might be getting somewhere.

There's one big gotcha that I can see: As long as you only require the "grant-back" for patents owned by the licensee, there's a loophole where the licensee simply sells their patents to someone else prior to doing the licensing, and then gets revenue from them. On the other hand, if you require it for all patents, owned or not, then you have the problem of code that inadvertently infringes one of the zillions of bogus patents - logically, this should be permitted, but under the license it wouldn't be.

Re:public patent license

[AeiwiMaster]

There is 3 players

1) The public patent foundation (PPF).

A not for money foundation which
hold a collection of patents under PPL.

2) a small inventor.

3) a big corporation.

Here is how I think the public patent licence (PPL) should work.

For a inventions under PPL the following is required.

a) All other patents the invention violate must be under PPL.

b) Blueprints/Source code/technical details for the invention must be published trough the PPF.

The is also a similar Lesser PPL (LPPL).

For a inventions under LPPL the following is required.

a) All other patents by the invention violate and made by the inventor must be under PPL.

b) Blueprints/Source code/technical details for the invention must be published trough the PPF.

c) The inventor must be a member of PPF.

As a member of PPF you pay a fee which help maintain the
PPF patent portfolio.

So, PPL invention is free for all while
LPPL invention have some secondary patents.

Scenery.

1) The small inventor.

a) A inventor get a patent, for an invention and start to produce and sell the
product.
b) A big corporation start to make and sell a cheep copy.
c) The small inventor call the corporation and say stop that I got a patent.
d) The big corporation say your invention violates 10 of our inventions.
Please, grand back your patent or we sue you.
e) The small inventor sells drops in the competition with the cheep copy,
and he can't afford to maintain hes patent.
f) He donate the patent to the PPF and get a nice tax discount.
g) The PPF goes to the big corporation and say your violate
one of our patents, either stop making the cheap copy or get a PPL or LPPL.

Re:public patent license

[cpt kangarooski]

To solve that last problem, you'd need to require a nonexclusive license to use, make, nonexclusively relicense, etc. any patented inventions added; failure to do so would be breach of the Patent GPL, and leave the contributor open for an infringement suit.

The problem still is that if the contributor infringes on a third party's patent, everyone using the contribution is infringing too. Perhaps they can seek indemnification, but it might not be effective, and the fact that contributors would have to indemnify the world is a serious deterrent against contributing. I wouldn't do it.

Re:public patent license

[Minna Kirai]

I think a way to handle the patent problem
is to make a patent license which work with patent law as the GPL work with copyright law.

Won't work; patents and copyright are too different.

Copyright protection only stops you from copying someone else's program. Patents make it illegal for you either to copy his work, OR to invent it entirely on your own, without ever knowing that someone else was already doing it.

(Note that the problem the GPL solves is enabling authors to release their code freely, without being worried that someone else might release modified code nonfreely)

Patenting of laws

[Anonymous Coward]

Sorry this may seem slightly offtopic but.. How come John Kerry or GWB don't patent their ideas for laws? That way innovation in legislature can be boosted. Hell, you can then have companies R&D'ing effective legislation that can boost the economy. They can then sell the law to the politicians who will pay a either a one time lump sum or portion of the laws revenue to the company.

If patents boost innovation and improve quality of life .. why isn't this a practice for legislature as well. Also it will cut down on Democrats stealing Republicans ideas and vice versa .. and spur innovation within these parties.

Technically existing business process patents can be utilized to patent laws.

Anyway, nuff said .. I'm off to patent my universal healthcare idea.

Re:Patenting of laws

[Halo1]

People mod this as funny, but why not? Patent-related business methods (implemented in software, of course) are already getting patented now. I guess you could see the introduction of laws also as some kind of business method in certain cases (DMCA anyone?)

Anyway, not all lawyers seem to be happy with this, but as Karl-Friedrich Lenz writes:

If in their view software patents are so desirable, the patent attorney community should eagerly volunteer to be the first in line for the fantastic technological advances they promise everybody else. Then, after the great leap ahead in patent attorney productivity gained by giving them patent protection for themselves becomes clear, we can consider gradually expanding the system to other areas.

Re:Patenting of laws

[Anonymous Coward]

this can also be used for malicious or good purposes .. as is done in business. ie, maybe u can patent flawed (in your opinion) systems and not license them or patent laws that may benefit others so that you can prevent them from having those benefits (if you're racist etc.)?

Re:Patenting of laws

[torokun]

Because we'd end up with the most efficient system possible -- facism. ;)

Patent system really is broken.

[Jaywalk]

The article argues that the patent system is not broken and that the only problem is the implementation. That's not a consistent argument because the way it's implemented is part of the system. Even his opening example, where an individual programmer comes up with an innovative algorithm and wants to patent it, contradicts the premise. The way the current patent system is written, the ante for playing the patent game (in terms of lawyers and fees) is too high for most individual players or small businesses. Before patenting software can even be considered, the patent system itself needs fixing. There is a good alternate proposal for this on Groklaw.

Re:Patent system really is broken.

[nattt]

Software should be copyrighted or protected by trade secret but NEVER patented. Software is a creative expression - not a machine. If you want to protect how you do something in code, then close the source. It should be as simple as that. Anything less than no patents for software opens all software to tyrrany from the big software corps.

Re:Patent system really is broken.

[Anonymous Coward]

>> "That's not a consistent argument...."

It's startlingly inconsistent!

Bray says that "the patent system makes all kinds of sense" where the invention is, for example, a butter churn or printing press because it is not possible to protect such technologies from being reverse engineered and swiped by deep pocketed, well equipped competitors. The quoted paragraph argues that the inventor should be able to reap ALL the benefits of his/her invention (i.e. the ability to market and sell the invention and not simply to USE their invention.)

Bray goes onto say he's "having trouble seeing the benefit to society in granting patents on something that could never possibly be done secretly."

Bray is not consistent because it is never possible to "secretly" market and sell an improved butter churn.

Said another way, Bray acknowledges the benefit to society of granting a patent to the inventor of an improved butter churn and yet marketing and selling such a thing can never be done secretly or in such a way that the inventive aspects of the improved butter churn are hidden from the public.

It seems to me like Bray is taking two positions that are inconsistent.

Re:Patent system really is broken.

[Minna Kirai]

Software is a creative expression - not a machine.

That's completely wrong. Software IS a machine, by the very definition of the word. (And, most machines are creative, some not- it doesn't matter)

The only difference between "data" and "software" is that the latter is a machine. Hardware and software are both machines, but one is made from atoms, and the other from information.

No, it doesn't

[HBI]

It's a way of pinning down patents to a specific algorithm. Some (most) of these applications are so broad it's difficult to figure out what the patent covers and what it doesnt. A working implementation makes this 100% clear.

If you use the code, if you use their patented stuff, you had best negotiate a license or be sued out of existence. However, if you want to code around the patent, this could be very useful.

Re:No, it doesn't

[Mr Smidge]

If you use the code, if you use their patented stuff, you had best negotiate a license or be sued out of existence. However, if you want to code around the patent, this could be very useful.

As much as this might disappoint the Perl hackers, there isn't always one way to do it. Sometimes there's only one good way of doing things (MP3 decoding comes to mind), and if the single-path bottleneck is patented then things might get difficult.

Why does free software have to be subjected to patents? It's not a commercial enterprise. If commercial entities stand to lose money from the competition of free software, surely that's their problem and not the free software coders'?

I think this could only work if the duration for which software patents were valid was shortened considerably (to, say, 3 years).

Re:No, it doesn't

[pvanheus]

Imagine the 'one-click' shopping patent - submitting an implementation hardly restricts the patent to a "specific algorithm".

And if you want to pin down patents to a "specific algorithm", how precise do you need to be? If you get too specific, patents effectively become almost identical to copyright. If you become too broad, you have... almost what we have now.

Imagine the code submitted along with a patent for a codec like MP3. Does your patent now cover just exactly that one way of encoding in MP3, or does it cover encoding in MP3 per-se? Or something in-between?

Re:No, it doesn't

[SerpentMage]

While I see what Tim Bray is trying to get, and your explanation makes sense, it does not solve the prime problem of patents.

In the beginning of his article Tim wrote that somebody would invent something, and then build it. The patent would protect the original inventor from having his ideas "stolen". Big companies could build the idea more efficiently and you would be out of business. Folks this is bogus as has been shown very often in industry big companies go out of business because they cannot adapt fast enough. I also disagree that there is more innovation and cheaper products.

Take a look at the following url: http://www.bpmlegal.com/wselden.html. Ever heard of George Selden? Probably not. Ever heard of Henry Ford? Probably yes. You see George Selden invented the car, which he never built. He just invented it and then sold the license rights. In fact because of George Selden's patent the car industry was slowed down. It was not until Henry Ford re-invented the car industry that the car industry came to life. Henry Ford did not see the point of paying license fees, fought George Selden, and eventually won. BECAUSE of Henry Ford average people could own and drive a car.

My point is that patents are problematic and they are monopolies that slow down the adoption of technology. If the inventors were reasonable and said "We only want our invested money back and 15%" then all would be ok. The problem is that inventors use patents to become instant millionaires or billionaires. Many consider the patent lawsuit like a lottery ticket, and THAT is bad in the industry. As the ZDNET Steven Nichols (http://www.eweek.com/article2/0,1759,1666755,00.a sp) says, only the lawyers win with software patents.

Re:No, it doesn't

[Anonymous Coward]

As much as this might disappoint the Perl hackers, there isn't always one way to do it.

Perl's motto is "TMTOWTDI: There's More Than One Way To Do It". So how would this disappoint Perl enthusiasts?

Re:No, it doesn't

[Anonymous Coward]

The parent meant to say "there isn't always MORE THAN one way to do it."

And this is, more or less, true. Of course you can add some bells and whistles, but you can't change mathematical facts.

For instance: if I patent a "method of sorting a linked list in O(n log n) time with sub-linear space overhead by using recursion", you are going to have one hell of a time getting around that (there is no iterative algorithm satisfying these conditions), perl or not.

The parent's mp3 decompression example is probably also good, but I haven't studied it personally.

The reason it would disappoint perl enthusiasts is obvious.

Re:No, it doesn't

[Mr Smidge]

The parent meant to say "there isn't always MORE THAN one way to do it."

Yes, that's what I meant. I should actually read my posts after pressing preview..

I understand his point, but...

[atrizzah]

I still think that software patents stifle innovation. The average useful program is made up of numerous components, not like an improved butter churn. Imagine if every little part of a program were patented: people would be way too caught up in liscensing fees to be able to write anything, especially a large application. If the patent system were to ever reasonably be applied to software, it will definitely need standards, something it sorely lacks now.

I do agree with him that anything software that is patented should be open source. At least this way, the company is forced to essentially put their idea in the public domain. Don't they make inventors of mechanical systems publish a blueprint?

I sure hope we get this figured out soon, because with multibillion dollar lawsuits flying around, I don't see how even giant corporations can feel safe doing business here in the US

Re:I understand his point, but...

[17028]

Yes, schematics were/are often submitted as part of the patent application when dealing with mechanical devices, if it's needed for the person reviewing the application to understand how it works. I think the problem is that the patent office isn't savvy enough to realize when a software patent is too broad. Requiring some form of an actual implementation would help there.

Self-Contradicting?

[Trolling4Columbine]

"I'd rewrite the law to allow software patents but require a working Open-Source implementation as a condition of getting one."

Aside from whether software patents are good or bad, wouldn't that totally defeat the purpose of getting a patent in the first place? Why would people pay the patent-holder royalties if they can get the source for free?

Maybe I just don't understand what he's saying...

Re:Self-Contradicting?

[SoTuA]

Because, um, it is patented, and they can't use that source without licensing the patent?

The benefit of this would be that you can see the patent as a working implementation, and decide if you want to license it or code around it. Plus, a working implementation makes a patent much more precise than "a method for doing something in some place".

Re:Self-Contradicting?

[sangreal66]

They'd pay, because you can't use it otherwise. The entire idea behind patents is to grant the inventor a limited-time monopoly in exchange for telling everyone how they did it. As it stands we grant the monopoly but don't get anything in return. Personally, I think software patents of specific implementations, not ideas, are perfectly acceptable. The system is definitely broken, however, and I believe this is a reasonable solution.

Re:Self-Contradicting?

[tigertiger]

Aside from whether software patents are good or bad, wouldn't that totally defeat the purpose of getting a patent in the first place? Why would people pay the patent-holder royalties if they can get the source for free?

No, that's exactly the idea of both patents and copyrights. They would have to pay because it is the law, however difficult that may be to enforce.

A patent is a promise by the state to enforce your exclusive rights on an invention in exchange for your publishing its details. Similarly, you are granted a copyright by the state on something in exchange for publishing it. In both cases it has to be "useful" to be protected - you cannot patent trivial ideas as you cannot copyright gibberish.

If you could just keep the inner workings of your invention secret, you would not need a patent to make money out of it, but then nobody else could learn from it and improve upon it. In that sense, open source and patenting are indeed the same idea .

Re:Self-Contradicting?

[julesh]

They can get the source. They still need to pay for the patent license if they want to use it for anything other than personal non-commercial research.

Re:Self-Contradicting?

[Ironsides]

But if it is required to be open source, then you don't need to pay for the patent. Hence the entire reason for open source. You can't charge for the source code and have to distribute it for free.

Re:Self-Contradicting?

[SoTuA]

The article advocates for a "visible" implementation, not a GPL/BSD licensed implementation. The entity applying for the patent must provide with an implementation, so that the process being patented is clear. This implementation is "open" (not "gratis", not "libre"), meaning you can look at it to see if you need to license it or if you can code around it.

Re:Self-Contradicting?

[Anonymous Coward]

Submitting the patented code under a permissive open-source license such as BSD would indeed be self-contradicting. However, submitting under a viral license such as the GPL makes a lot of sense. The public gets the benefit of GPL use. Competitors would be unlikely to be able to exploit it because they wouldn't want their code to be infected by the GPL. The submitter as the copyright holder would enjoy the benefits of dual licensing. The GPL itself may not be the correct choice, but perhaps a standard Open Patent License meeting the Open Source Definition (and GPL-compatible) could be crafted.

Patents are big business for Big Business

[joelethan]

While the lawyers get rich and the large corps spend their small change in the patents courts it's the small innovator who continues to suffer.

Just how long do patents last on software, 75 years(ish)? It strikes me that innovation should be rewarded by a short patent of say 7 years then the IT community benefit straight after.

Re:Patents are big business for Big Business

[cpt kangarooski]

Since we're still close enough to the transitory period, the patent might last 17 years from issuance or 20 years from filing. (the latter is the newer term)

Good idea

[Anonymous Coward]

That is a good idea! It sure would prevent the frivolous use of patents today.

Mind you, if they don't do something about useless patents the system will collapse removing the problem all together.

Open-sourcing patented sofwtare is pointless

[JaredOfEuropa]

They'd incent the inventor to share the goodies and the whole world would end up improved

How would revealing the source help? It would save you the effort of reverse engineering, but you would still not be (legally) able to use whatever it is you were interested in, without obtaining a license from the inventor.

Re:Open-sourcing patented sofwtare is pointless

[Al Dimond]

Exactly. It would still allow the holder to license it however it wants, but would concretely explain just what it is that the patent is supposed to cover. It would eliminate the ability to create broad patents and ensure that the patent holder actually has the ability to make something useful with the patent and not just hold a submarine/defensive/offensive patent portfolio.

say who?

[tomstdenis]

XML "co-invention fame"? XML isn't exactly something that um... original. For crying out loud it's just angle brackets and a small grammar!

That's like saying

Tom St Denis [of key=value pair co-invention fame]

I think we need to stop deifying every nutjob with a RFC.

royalties as a percentage of sales price

[another blockhead]

A recent discussion on Groklaw included the idea of mandating that royalties on use of patented software must be based on a percentage of the sales price. Any percentage of zero is a reasonable amount to pay for including patented algorithms in free software. I couldn't care less what impact this might have on proprietary software makers; let them all sue each other into oblivion if that's what they do best.

Re:royalties as a percentage of sales price

[julesh]

A ridiculous idea. Say that the MPLA (who arrange licensing of patents on MPEG) set the royalty for licensing MPEG2 at 5%. They also set the royalty for licensing MPEG4 at 5%.

I now create two products, a media player than can play MPEG2 content, and an extended one that can play both MPEG2 _and_ MPEG4 content.

I price the first at $200, so MPLA get $10 per unit. I price the second at $300, because it's a lot better. MPLA get $30 per unit.

Why do they get 3 times as much money when I've only used twice as much of their IP?

Re:royalties as a percentage of sales price

[another blockhead]

I said I didn't care about proprietary software, but I'll bite anyway.

You've added an extra quantum of "their IP" to your first product, increasing your manufacturing cost by zero, and you want to charge an extra $100 for that and that alone ... and you're complaining about having to pay an extra $20 in royalties in order to get an extra $80 in net profit. You're right, it is a ridiculous idea to allow this -- probably we should forbid whining, too.

But you always have options. For example, you could sell just the hardware, and make the software available for free. If your product uses hardware MPEG decoders, you could sell them as add-ons to a basic unit, so that royalties are paid on the selling prices of the add-ons.

Re:royalties as a percentage of sales price

[julesh]

I said I didn't care about proprietary software, but I'll bite anyway.

Tell me, do you own an MP3 player? A DVD or VCD player? A digital video camera? An MPEG-accelerated video capture or display card?

All of these products' manufacturers will be licensees of MPEG related patents. Unless they're illegal grey imports, of course.

You've added an extra quantum of "their IP" to your first product, increasing your manufacturing cost by zero, and you want to charge an extra $100 for that and that alone ... and you're complaining about having to pay an extra $20 in royalties in order to get an extra $80 in net profit.

First of all, their IP isn't all I'm adding to that product. I'll have my own software development costs (buying a patent license doesn't buy you an implementation), the machine will likely require a more powerful processor, because its a higher priced model it will probably sell fewer units, therefore I will have higher per-unit distribution and marketing costs on it, and so on.

I might actually end up making _less_ profit on it, because of that extra (and let's be quite clear) unfair $10 fee that you're talking about levying because you believe it would in some way be more fair.

Whichever way you look at the profits on such a piece of equipment, there is one thing that is clear: if you increase the manufacturers costs by $10, they will increase the price by that $10 to pass those costs to the consumer. That's the way business works, and because _everyone_ in the market will be licensing the same patents, you will suddenly find that the price of all DVD players that can also play DIVX (or WMV, or whatever other patented format you may be interested in) have gone up.

In fact, the cost will rise _quadratically_ with the number of patented features you want to include. If a player had MPEG2, MPEG4, WMV, WMA, MP3, WTF and FOOBAR support, each licensed at 5%, I'd have to put the price up by another $75 just to cover the cost of the licenses at $300... then there would be another $18.75 to cover the increased cost because I just put my unit price up... before you know it I'm spending over $130 on patent licenses without increasing my profits, my unit price is up to $400... and those individual licenses were priced at 5% because their owners expected systems to retail at about $200 and they wanted $10; now they're getting twice as much money for that. And they have no control over it, because they're _forced_ to work on a fixed percentage.

But you always have options. For example, you could sell just the hardware, and make the software available for free. If your product uses hardware MPEG decoders, you could sell them as add-ons to a basic unit, so that royalties are paid on the selling prices of the add-ons.

Oh, yeah, 'cause everyone wants to buy consumer electronics devices that they have to put together themselves and install software on to make them work.

Re:royalties as a percentage of sales price

[jimicus]

In fact, the cost will rise _quadratically_ with the number of patented features you want to include. If a player had MPEG2, MPEG4, WMV, WMA, MP3, WTF and FOOBAR support, each licensed at 5%, I'd have to put the price up by another $75 just

And you can say goodbye to those DVD players which handle just about everything, including JPEG, MP3, DivX, Xvid, Video CD, audio CDs etc. The patent licensing would work out at 110% of the purchase price.

Re:royalties as a percentage of sales price

[julesh]

True. The cost wouldn't be quadratic at all. It would in fact be hyperbolic, tending to infinity at the point where all of the proceeds of sale will be distributed to the licensors.

Re:royalties as a percentage of sales price

[another blockhead]

I might actually end up making _less_ profit on it, because of that extra (and let's be quite clear) unfair $10 fee that you're talking about levying because you believe it would in some way be more fair.

Hang on, a minute, there ... did I use the word "fair" at all? I only said that zero was a reasonable royalty for use of patented algorithms in free software. Disagree with that, if you want to.

It looks like you've described what's wrong with your business model pretty well. Perhaps, since you're more interested in that than I am, you might want to consider what business models would succeed if free software developers didn't need to worry about software patents.

Oh, yeah, 'cause everyone wants to buy consumer electronics devices that they have to put together themselves and install software on to make them work.

Of course, "everyone" doesn't want that. "Everyone" doesn't want to throw away last week's gadget to get this week's new feature, either.

What is he smoking?

[k98sven]

How can you have an 'open source' implementation of something which is patented?

If it's patented, you'd need a license to develop the program further. You'd need a license just to run it.

How is that 'open source'?

Re:What is he smoking?

[julesh]

How can you have an 'open source' implementation of something which is patented?

If it's patented, you'd need a license to develop the program further. You'd need a license just to run it.

How is that 'open source'?

Patented inventions can be used for 'experimental non-commercial' purposes (e.g. educational use) without a licence. It isn't open source in the way we currently understand it, but there is scope for this to be useful.

Re:What is he smoking?

[tigertiger]

If it's patented, you'd need a license to develop the program further. You'd need a license just to run it.

You need a license to make commercial use of the invention. You can still make an improvement on an invention, and patent the improvement - people wanting to use the improved version would have to pay both you and the original patent holder.

At least German copyright law exempts both private and research use of a patent from licensing. The idea is basically, only if you use it commercially, the patent applies. So patents would kill the Open Source business, but not the original hobbyist-based open-source development model. An university research and teaching would almost certainly been exempted, as the whole idea of publishing a patent is that it can be learned from.

Re:What is he smoking?

[cpt kangarooski]

The experimental use exception is amazingly narrow. Not all, in fact, not most, educational uses are within it.

Re:What is he smoking?

[k98sven]

There is a definition of Open Source on which most within Open Source agree.

Item six:

No Discrimination Against Fields of Endeavor

The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research.

So it's not open source under a widely accepted definition. And no, university research is not neccesarily exempt, either.

It's a very narrow exemption which is only applicable to people doing research (or teaching) which is precisely within the bounds of the patent. But if you are merely using the patented invention to do research, you need a license.

Re:What is he smoking?

[Cygnusx12]

You need a license to make commercial use of the invention. You can still make an improvement on an invention, and patent the improvement - people wanting to use the improved version would have to pay both you and the original patent holder.

Ok -- Can Open.. Worms Everywhere..

At where does one draw the line between a derived version and an original version? Suppose you write library foo, and I look at your code, and say, re-write foo in an entirely different fashion. Am I violating your patent? Am I missing something or does the article propse something that's more along the lines of copyright? Is functionality protected or just the text? If functionality is protected, what's the point? (Not trolling, just asking!)

Microsoft Linux 2005

[Anonymous Coward]

Microsoft will likely adopt open source in 2005 and claim it invented Linux like it invented the internet...

The only two inventions of Microsoft's that I know are NETBUI/Netbios and NTLM hashes. I like them both as they are easy to hack'n crack.

Re:Microsoft Linux 2005

[LnxAddct]

When Bill Gates was recently speaking at Berkeley, he stated that Microsoft made and allowed software to become an international thing. I was laughing so hard that I almost cried.
Regards,
Steve

does source code actually violate a patent?

[gr8_phk]

I've been considering an unusual idea. Source code is the natural language to describe a software patent. If source code is only a description of the patent, and an executable running on a machine (which seems to be required to complete the "patented device") is required to be a violation... Wouldn't software distributed only as source code be non-infringing?

As I recall, you are also free to use patented stuff in your own home without paying for it - only commercial use would actually infringe.

IANAL, and while this seems like an attempt to weasle around the system I rather like it.

Re:does source code actually violate a patent?

[micromoog]

That's all true. You're more than welcome to write your own open-source one-click shopping system, to use in the privacy of your home.

Re:does source code actually violate a patent?

[tigertiger]

Wouldn't software distributed only as source code be non-infringing?

That is a famous discussion even beyond patent law, namely whether source code should be protected as free speech. It might well be.

Then open-source code would be legally privileged over binary executables - something Richard Stallman must have been dreaming about for years. Make it actually illegal to distribute binaries...

For an example of the shallow border between source code and constitutionally protected speech, have a look at the Gallery of CSS Descramblers.

Re:does source code actually violate a patent?

[Anonymous Coward]

q: Does Source Code actually violate a patent?

a: It might if it is eventually converted into a working product. From the Eolas v. MS case:

The intellectual property at issue in this case, namely the Windows source code, is contained on a computer disk, known as the "golden master." Microsoft
provides this disk to foreign Original Equipment Manufacturers ("OEMs") pursuant to intellectual property licensing agreements for their use in making and selling abroad computer products containing Windows. According to Microsoft, new units of Windows code are created abroad when the foreign OEMs, for each unit, replicate the Windows code in its manufacturing facility using the single "golden master" and installs these new units of replicated code on a computer useable medium, such as a computer disk or hard drive, which is supplied by the foreign OEM. Microsoft argues that this "golden master" is not a component of the foreign sales products within the meaning of Section 271(f).
The closest cases are W.R. Grace & Co-Conn v. Intercat, Inc., 60 F. Supp. 2d 316, 319-21 (D. Del. 1999) and Lubrizol Corp. v. Exxon Corp., 696 F. Supp. 302, 325 (N.D. Ohio 1988). In these cases the defendants sent chemical products
abroad that were combined as supplied with other compounds into compositions that would have infringed had the combination occurred here. Those judges found that there was liability under Section 271(f). Only one of these opinions offered a rationale but both relied on what they, and I, agree is the plain language of the statute.
Microsoft argues that the "golden master" is distinguishable from the chemical products in these cases. It asserts that the disk is analogous to the formula for those chemicals sent abroad, not the chemicals themselves and
therefore, the disk is not a component of the allegedly infringing product.
The "golden master" is like a chemical formula in that it is a series of directions (commands) written down so that it can be used again and again. If followed, the formula produces a result which is desired by its user or purchaser.
The "golden master" is unlike a chemical formula because its contents are an operating element of the process which produces the result which is desired by a user or purchaser (like Paranox 300 and Paranox 600 when added to other ingredients made a better oil additive in Lubrizol).
A chemical formula can be memorized (as many complex recipes are) and discarded. The source code has to be installed, never to be discarded.
A philosophical argument can be made that installation of the source code is akin to memorizing it. But I think the recipe memory, of which we speak (in ordinary language) is not what we mean when we speak of computer memory.
The machine does not 'remember'--it holds code and, unlike the human, that is all it does. The result desired by the user of the compound product of the programmable machine (a computer) and Windows code is made from code and
hardware together. That which invokes the operation to secure a result (i.e., my
finger pushing buttons) and the devices connected to the buttons are, in the important sense here, external to the basic product. So too are the devices which input data. That which displays the machine's output is external in this way. The devices which start the machine, input data, or display output are essential to the usefulness of the machine to users. Yet if the laptop on which I am writing this opinion had a power button stuck in the on position, a keyboard covered by a solid locked plate, and the screen was dead, but "my laptop" is still there. What is there is the internal hardware and the source code which operates, provides utilities, can browse and execute applications.
This analysis is not metaphysical. It is an analysis of language. It is appropriate because the goal is to find the meaning of ordinary language as it is used by lawyers and judges when deciding whether something is made and, if so,
where it is made. Where code is installed on a disk or a hard drive

Re:does source code actually violate a patent?

[maxwell demon]

But if it were illegal to distribute binaries ... how would you get the compiler to compile your source code with? Well, of course as source, which you would compile ... how?

Re:does source code actually violate a patent?

[ipgeek]

> As I recall, you are also free to use patented stuff in your own home without paying for it - only commercial use would actually infringe.

Whoa, wait a second here. This is just plainly incorrect. There is *NO* "commercial use" exception to patents. Heck, even if you are a university researcher doing wonderful non-commercial work, you are *not* allowed to practice a patented process. Period. Not without a license from the patent holder (or without resorting to some very complicated exceptions in section 271 of the patent code that deal with drug research).

IAAL and I can say that this is one of many fundamental problems with the patent system...

Re:does source code actually violate a patent?

[gr8_phk]

So Microsoft is trying to make an arguement that could benefit open source software?

The system must be broken...

Re:does source code actually violate a patent?

[theCoder]

Actually, while you may be free to write your own one-click shopping system, the moment you start using it, you would be in violation of the patent. Patents prevent people from even using the patented device without approval. That's why they're so damaging to Free Software, and why COTS software users aren't really protected any more than FOSS software users (other than the inherent obscurity of the COTS algorithms).

Of course, IANAL, YMMV, etc.

Re:does source code actually violate a patent?

[jizmonkey]

as a practical matter you may be right (see newman's dissent in the recent duke university case) but as a matter of common law you are not.

Sun employee peddles Sun line, (yawn)

[hopethishelps]

From Bray's article:

Suppose you're a keen young programmer and you've figured out a keen new algorithm for securing a communications channel or crash-proofing a database or animating an MMPORG monster.

He goes on to suggest "well, why not" a patent.

He expects us to believe that he doesn't realize that "a keen young programmer" hasn't got the tens of K dollars to get a patent, and certainly hasn't got the millions of dollars needed to defend a patent against wilful infringers.

I think the article is probably just astroturf; after all, Bray is now a Sun employee and the Sun's line is that software patents are a Good Thing.

Re:Sun employee peddles Sun line, (yawn)

[julesh]

He expects us to believe that he doesn't realize that "a keen young programmer" hasn't got the tens of K dollars to get a patent

I believe you're out by an order of magnitude. You don't _have_ to hire a patent attorney to get a patent. It only improves the chance of being successful, as they know how to phrase them to get them through.

and certainly hasn't got the millions of dollars needed to defend a patent against wilful infringers.

At this point, he would show his patent and the infringer to potential investors. Sooner or later, one would say, "yeah, looks like you can nail those bastards" and agree to finance him for a hefty cut of the proceeds. It might work.

Copy...r...i...g...h..t...

[http101]

I don't believe being bound to an 'open-source' rule would justify getting a patent. One should not be forced to supplement confidential product plans or company "trade secret" in order to apply for a patent. That's like buying a car, test driving it, insuring it, washing it, then getting a license for it. Its back-ass-wards. When other companies decided to make similar products of another company, they reverse-engineered the product and changed enough of the architecture and called it their own.

Re:Copy...r...i...g...h..t...

[julesh]

One should not be forced to supplement confidential product plans or company "trade secret" in order to apply for a patent.

Err, that's exactly how the patent system is _supposed_ to work. In order to get a patent you supply your "trade secret" details of how your invention works to the patent office, and they give you a patent in exchange for the right to publish those secrets.

Re:Copy...r...i...g...h..t...

[spitzak]

You don't have to submit *all* your source code. Just a piece that demonstrates how to code the patented method.

No arguments for Open Source implementation

[g_bit]

Can you find one argument in that article for the reason *why* an Open Source implementation would help?

The author makes a nice argument for the existence of patents in general and for software patents, but I didn't see anything in the way of telling my why the hell I would want to Open Source my new invention.

Well, I guess the words Open Source showed up so it must be news.

Re:No arguments for Open Source implementation

[Deorus]

> Can you find one argument in that article for the reason *why* an Open Source implementation would help?

According to the article, the author complains about how software patents are implemented in US, so the only way to avoid the US patent mess in other countries would be to disclose the source so that everyone could see and avoid copying.

There is a big disvantage with this proposed patent implementatiom though: one may not be able to implement THAT algorithm, but one can still use the idea they got from it with their superior programming skills to make a 10 times faster algorithm which didn't look anything similar to the original one besides producing the same results.

Re:No arguments for Open Source implementation

[rts008]

"There is a big disvantage with this proposed patent implementatiom though: one may not be able to implement THAT algorithm, but one can still use the idea they got from it with their superior programming skills to make a 10 times faster algorithm which didn't look anything similar to the original one besides producing the same results." Okay, help me out here, doesn't this stifle improvement, innovation, and progress? Where I'm coming from: for example- first automobile (arguably) by C. Duryea (sp?) was patented on " concept of automobile". Now as I understand it your way, Henry Ford would never have been able to apply mass production of automobile, and until C.D.'s patent expired, if you wanted an automobile ,you would have to buy one (hand-made at high cost) from C.D. IMHO we've gotten where we are today (technology) by innovations and improvements on existing ideas. I'm just not sure where your coming from to be honest. BTW, I don't agree with TFA. I think the current situation with software patents is heavily geared to protecting corporate profits and hindering improvements/progress, but I think there needs to be some major reform in the present system.

Re:No arguments for Open Source implementation

[Deorus]

Hey, hey, I don't like software patents either, but I think his idea would narrow concept a little too much to even be usable, that's just my point, don't get me wrong. :-)

Re:No arguments for Open Source implementation

[rts008]

OOPS!, Sorry. Was just confused! :-)

Give no ground. Not an inch.

[Featureless]

I read the article. It's basically incoherent, or rather, it doesn't give enough details to even properly evaluate the idea. One thing's for sure. It does not answer any of the major, show-stopping problems with software patents.

If you have a patent office staffed with geniuses, gifted with eidetic memories, even if every patent holder submits open-source code along with the patent, you will still have a body of hundreds of thousands or millions of patents, and hundreds or thousands more each day.

A software developer will have to read the entire patent database, and then stay current with all the new applications. Obviously this is physically impossible. The end result? Every piece of code is a ticking patent timebomb.

"Hello, sir. I see you are violating my patent on dereferencing pointers on Tuesdays. I assure you this was extremely innovative in 1992. My fee is $1,000 per asterisk, of I will see you in court. By the way, a little hint about court: it will scare off your customers, cost you millions in attorneys fees even if you win (and you might lose!), and take ten years. Your choice."

Software patents are purely an anticompetitive tool designed and maintained exclusively for a few large corporations who just happen to have created large, shockingly broad software patent portfolios. It allows them to sue any small competitor out of existence, and threaten even larger competitors. They have already been seriously destructive to our economy, and their effect on innovation, and eventually America's place in the global technology industry, is an ongoing catastrophe.

There is no possible compromise. The system is inherently, obviously broken - a ridiculous legal con game. Software patents must be repealed, or our technology industry will wither and die (and happily be replaced by Europe - or, if Europe isn't smart enough to steer clear of them, in Asia).

Re:Give no ground. Not an inch.

[rts008]

RIGHT ON! Well said,etc.

Re:Give no ground. Not an inch.

[Minna Kirai]

Software patents must be repealed, or our technology industry will wither and die

While I agree that software patents are bad and harmful, that's chicken-little hyperbole.

Like with most things that are legal and harmful, those who benefit from software patents will be smart enough not to kill a good deal. They'll scrape their 5-15% tithe off of development, and price non-commericial programmers out of key areas... but they won't abuse it so much that the overall industry dies. Even approaching that level of enforcement would get Congress to wake up and legislate software patents into oblivion.

The reason so many ludicrous software patents exist today is that they're hardly ever enforced.

This shouldn't need a change in the law.

[91degrees]

Inventors are already required to disclose how the invention works to someone skilled in the domain of the invention. Hence, such a diagram should be either in a programming language, or some sort of standard design (e.g UML). For some reason, a vague, verbose wordy description seems to be accepted by the USPTO.

Makes sense to me.

[Anonymous Coward]

If I were to try to patent a car part, I'd have to show a schematic of the part to the Patent Office, and after that, the schematic would be on the public record, forever. Seems like software patents should be the same: Want a patent? Publish your code or just live with only having a copyright on the binaries. This way, when the patent expires, we'll still have the code out there for inspiration. Also, if the patent is public record, it would be easier to tell if someone was using stolen code. Give the disputed code to an arbitrator, tell them how to compile it, diff the binaries to make sure it's the same as the commercial product. As long as the source that generates the product isn't using code that's the same as the patent code, no problem. The SCO case closed would be closed in the time it takes to grep the linux source.

Or am I missing something?

Re:Makes sense to me.

[lightknight]

Yes: you do not have to show a schematic. You need only describe it in sufficent detail such that a person skilled in the art could understand it.

Not sure this will help

[nels_tomlinson]

The patent office used to do something like this: they once required that every patent be accompanied by a working model. They spent a lot of money over the years storing those models. Today, they only require models of eternal motion machines. There is little downside to Bray's proposal, since the storage space for the software models would be negligable.

Bray says that software patents do a lousy job of disclosing inventions: they are (sez he) ``notoriously inaccurate, incomplete, and unreadable.'' He assumes that the patent office, which can't even seem to read the patent applications, would be able to test the software and determine whether it was indeed a functional and useful implementaion. That sounds optimistic.

Furthermore, any patented methods and the code which embodied them would be of no value to Libre software until the patent had run out. After all, public domain implementation or not, you still have the problem of a license for the method!

Re:Not sure this will help

[mdfst13]

"He assumes that the patent office, which can't even seem to read the patent applications, would be able to test the software and determine whether it was indeed a functional and useful implementaion"

Even if they fail at this, there are still two things that this does:

1. A defendant in an infringement suit can read the actual software and use it in the defense. If the code is non-functional, then it will be easier to invalidate the patent in court (since a valid implementation is required).

2. After the patent finishes, the code is available. Currently, a software patent offers no new information.

The story repeats

[Deorus]

What the author speaks about here is in my opinion the same Microsoft tried to do in regard to the Sender ID standard draft, and it did not work because according to the (well fundamented, in my opinion) Apache Software Foundation's position (just to name an example), the problem happens when people insist that there must be end users. One of the main goals of free software is to allow everyone who gets a copy of a program to be able to do whatever he wishes with that program, provided that credits to previous changes remain intact, new changes are disclosed, and the receiving party gets exactly the same rights. A patent system is closed in respect to this problem, because the receiving party is forced to ask the original author of the patented software for a royalty if he wishes to make changes and/or redistribute.

Good troll

[DogDude]

I like your troll. You don't agree or don't understand or don't want to admit he's right, so you suggest that he's a corporate mouthpiece. Fantastic. How do you propose that "keen young programmers" can make a living from a software invention? [Keep in mind that you should tell us who you work for in your response so we can call you a "shill" or something else appropriate if we don't agree with you].

Patents should protect individual inventors

[Anonymous Coward]

...not big companies.

'In fact, in an ideal world, I'd rewrite the law to allow software patents but require a working Open-Source implementation as a condition of getting one.'"

That's great, but now you've raised the bar so that anybody with a good idea can't patent it unless they have the cash to hire programmers. Not a problem for big companies, but a problem for individual inventors. That's why patents don't require an implementation - because the patent is there so you can get funding to build the implementation(s).

Re:Patents should protect individual inventors

[FullCircle]

I disagree, patents are there to protect the people who invested in the R&D to produce something new.

The sad state of patents is partially due to people who can think of a flying car, but have no idea how to build one.

Re:Patents should protect individual inventors

[Anonymous Coward]

The sad state of patents is partially due to people who can think of a flying car, but have no idea how to build one.

I'm not saying patents should be granted for somebody unable to describe how the invention works. I'm saying patents should be granted without the person having to actually go and build a flying car first.

patents and oss inconsistent

[tonythepony]

I think the author has some fundamental misunderstandings about patents. They are statutory granted monopolies that allow you to decide how your "invention" is used. Therefore, if you release your patented software under an open source license, your patent is now meaningless since the oss license now says how your software can be used. This may be a good thing in that everyone can benefit and no one else can patent it, but this is not what the author is saying. The author seems to thing that you would still get the benefits of the patent, which is incorrect.

Re:patents and oss inconsistent

[vidarh]

You seem to be misunderstanding it too. The point of patents is that you get the time limited monopoly in return for explaining how your invention works, so that when the patent expires everyone can start using the same invention.

Releasing your patented software under an open source license would only make your patent meaningless if the license explicitly includes a license of the patent as well as the code - otherwise the patent would prevent you from legally using the software.

One of the many problems with patents today is that the patent claims usually are so vague they can apply to a very broad class of implementations, and can be stretched to cover ideas that wasn't conceived when the patent was filed.

Requiring an "open source" implementation would at least solve that one problem, if the patent protection is limited to exactly the methods demonstrated by the programs. It would also make it hard to obscure how the invention works, and therefore make patents much more useful, and make it easier to try to work around them.

Re:patents and oss inconsistent

[I confirm I'm not a]

Therefore, if you release your patented software under an open source license, your patent is now meaningless since the oss license now says how your software can be used.

Strictly speaking, the OSS license says how *one* implemenation of your patent can be used. It's like Tomcat - Tomcat's the reference implementaion of a "Java Servlet Container", and it's OSS, but there are other - proprietary and OSS - Java Servlet Containers out there. I believe Sun (someone more clueful than me chime in if I've got this wrong) initiated work on Tomcat (nee JServ) and then handed it over to the ASF, but that in no way stopped Sun from working on other J2EE projects - even projects very similar to Tomcat.

Re:patents and oss inconsistent

[tonythepony]

The assumption I'm making is that the software is deomstrative of the patent. Therefore using the software would be using the patented "invention". Therefore a license that lets everyone use the software (which an oss-approved license would) would let everyone use the patent. Therefore your power to pick and choose how your patent is used is gone. I agree with what you're saying about the problems of patents - and that an open source implementation would make the patent less vague - but it would also make its power moot. Note, I still think an oss license is better than exercising your patent however.

Re:patents and oss inconsistent

[vidarh]

As I pointed out, unless the license explicitly grants you a license to the patent, you don't get a license to use the patent just because you have a license that grants you the right to distribute the software.

The BSD license, for instance, would NOT in any shape or form give you the right to use software that contains patented material, though you might still be able to redistribute the software (depending on laws in your jurisdiction). The GPL is amiguous on the point. The preamble and section 7 deals briefly with patents, but IANAL and don't want to guess at what problems would arise.

The point is that there is nothing preventing the release of software as open source while still protecting the value of the patent by requiring a paid license to use the patented invention. Such software could still be useful - it might allow open source products to include the patented software as an option that you can legally use only with a license (FreeType have already been doing something similar for hinting).

The right to limit use is the primary protection granted by patents. If you wish to limit distribution, you should be looking at copyright, not patents.

Affinity. Use a dictionary.

[Anonymous Coward]

0. A *similarity*. "There was an affinity between Windows 95's and MacOS's trash cans".
1. A natural attraction or feeling of brotherhood. "Jon had an affinity for Pat".
2. Being related by Marriage.

None of which is what /. editors meant.

My Software Patent Sucks

[Anonymous Coward]

I don't want to start a holy war here, but what is the deal with you Software Patent fanatics? I've been sitting here at my freelance gig in front of a Patented system (a 3Ghz w/640 Megs of RAM) for about 20 minutes now while it attempts to copy a 17 Meg file from one folder on the hard drive to another folder. 20 minutes. At home, on my OSS 2Ghz running Mandrake 8, which by all standards should be a lot slower than this Software Patented system, the same operation would take about 2 minutes. If that.

In addition, during this file transfer, my Software Patented browser will not work. And everything else has ground to a halt. Even my Software Patented texteditor is straining to keep up as I type this.

I won't bore you with the laundry list of other problems that I've encountered while working on various Patented Software, but suffice it to say there have been many, not the least of which is I've never seen a Patented system that has run faster than its OSS counterpart, despite the Patented System's faster chip architecture. My Zarus with 8 megs of ram runs faster than this 3Ghz patented machine at times. From a productivity standpoint, I don't get how people can claim that the Patented Software is superior.

Software Patent addicts, flame me if you'd like, but I'd rather hear some intelligent reasons why anyone would choose to use a Software Patent over other faster, cheaper, more stable systems.

Re:My Software Patent Sucks

[Anonymous Coward]

In Soviet Russia, 17 meg patents files you!

Tim Bray Is....

[mlauzon]

Tim Bray is a very helpful man, when I was trying to design a programming language based on XML he answered a few of my questions...unfortunately because I couldn't get any Developer support it went nowhere!

I RTFA'd

[Sheepdot]

I read the article and actually see nothing he covered that is anything different than patents now. I'm not a patent lawyer though. I suppose copyright law doesn't require an open source version, but patent law usually requires a working prototype of whatever it is that you are going to patent. It's the reason why I don't own the patent on the windowed refrigerator, even though I originally came up with the idea in class when I was 7. I knew it'd be possible one day, but I didn't know how.

To get straight to the point, though, I don't like this suggestion at all. The copyright and patent system is inherently flawed and stifles competition far more than it dulls innovation. Innovation is driven by *need*. By patenting a pair of pants, you can get down to the very atomic makeup and they are actually quit different from each other. The only difference is, what we "see" is two pairs of the same kind of pants, so when the two owners of said jeans come in and complain about each other stealing the others idea, we somehow came to the conclusion that the "first guy" is the one that owns the patent.

It's easy for us, as programmers and scripters, to know why software patents are horrible. It's because we will run into software on a regular basis that is something that we *can* make and indeed *could* have. If people were patenting and copyrighting these ideas, they'd be basically getting the government thugs to route out competition.

What kind of an environment is the US government promoting when it can't see that it's being "used" to enforce anti-competitive policies?

Re:I RTFA'd

[Anonymous Coward]

>patent law usually requires a working prototype >of whatever it is that you are going to patent.

Not in many patent regimes, it doesn't. In Canada, according to our Supreme Court, the test is "sound prediction": http://www.canlii.org/ca/cas/scc/2002/2002scc77.ht ml. Comparable UK House of Lords case law is cited. (I acknowledge that this isn't directly responsive to your comment, because of the way it is framed, but it is highly relevant).

Why does everyone keep

[warrax_666]

mentioning profits? Whether or not you are profiting from using a patented invention has nothing whatsoever to do with enforcement of said patent. Conditions of use stipulated by patent owners can be completely arbitrary, i.e. "you must release any software using this patent under an OSS license", "you must pay me $1 for every item sold", or "you must stand on one leg while using this patented algorithm". Of course, the latter is somewhat less enforcable, but still... whether or not the patent-using party profits is completely irrelevant.

We already have

[sytxr]

obfuscated source code contests> .

( It should be clear to us that, without very strong safeguards against it, that is what patent lawyers would tend to make out of writing source code for software patent applications, just like what they have made out of the descriptive text for normal patent applications. )

Patents and time.

[malkavian]

Software patents, aren't in themselves bad. The thing that isn't addressed is their timespan.

Patents for physical things took into account the fact that they needed to be drawn, engineered, factories built to create them, distribute them, have them installed where necessary, and then cover them through a fair lifespan.

Take, for example, valves on a chemical plant. A new and innovative one could be thought of and patented.
Then, the factories set up to produce it (say a year from patent perhaps, now safe to give the designs under contract, as it's patent protected), then it needs to be marketed, so, perhaps 2 years from inception to starting to get used. Initial tests and usage in industry, say, 4-5 years until it really starts to be used industry wide.
Lifetime of a valve, perhaps 10 years if they're in a harsh environment, more if not. So, you get in one round of replacement of the same thing.
But, the timescale there for a physical item that's supposed to last 20, 30 or more years isn't terrible. It's still VERY useful in 30-40 years.

Now, software, protected for the same duration.
Patent is drawn up. Software out the door days later, as there are no real tooling and production costs (relatively speaking). It's possible for sales to ramp up and reach market saturation within a year, if it's something innovative and useful. Industry acceptance and having it treated as 'old and established' within 2.
Within about 5 years, it's (usually) classified as obsolete.
So, for the next 20 years after being obsolete, it's holding back the market from developing it's successor, because it's patent encumbered, and license fees need be paid on it. So, the next generation flounders.

If Patents took into account the average obsolescence period of the market, and allowed a patent for the given period, things would work nicely.
Once it's in the 'getting a little old and clunky' period, anyone can then make a free implementation of it, or perhaps design it's successor based on the original. OR a proprietary new version, or whatever! But it keeps things moving, which is what patents were meant to do all along.

5 years for a software patent? Sure, that sounds fine. Maybe 7 or 8 at a push. If you've not made money off an idea in that time with a captive market in the tech game, you're probably not going to.
But the 5 years is enough to allow something to prosper, while ensuring that you keep thinking of the next idea, or allowing someone else to.
And perhaps it would stop all these patent shops churning out nothing in the knowledge that they've got 20 odd years to sit on it and hope someone comes up with something they can shoehorn into what they've got on their papers.

5 years is a lot less time, enough, really, to say "If you're not going to use it, then you've had your chance to, now let someone else actually do something good with the idea"..

Re:Patents and time.

[tacokill]

Responding to this:

"Take, for example, valves on a chemical plant. A new and innovative one could be thought of and patented. Then, the factories set up to produce it (say a year from patent perhaps, now safe to give the designs under contract, as it's patent protected), then it needs to be marketed, so, perhaps 2 years from inception to starting to get used. Initial tests and usage in industry, say, 4-5 years until it really starts to be used industry wide. Lifetime of a valve, perhaps 10 years if they're in a harsh environment, more if not. So, you get in one round of replacement of the same thing. But, the timescale there for a physical item that's supposed to last 20, 30 or more years isn't terrible. It's still VERY useful in 30-40 years."



I sell valves for a living...and I used to manage IT projects as well. This poster is dead-on with respect to his valve analogies. When a valve is originally developed, it is usually patented. However, within about 15-20 years, you can bet that there are *almost* exact duplicates of that valve on the market. (read: the developer makes his money for a while, then the competitive floodgates are opened and more players come into the market). They try to maintain patents here and there and mostly, they are successful for truly revolutionary ideas. However, for the "run of the mill" features, it's not even worth their time to try to enforce a patent because there are 1000's of competitors to deal with.

The same is NOT true for software. Once code is patented, it is stored away for a very very long time until it's usefulness is nil or newer technology passes it up. The problem with this is that the patented ideas never build on themselves.

Re:Patents and time.

[Anonymous Coward]

Software patents, aren't in themselves bad. The thing that isn't addressed is their timespan.

It should be obvious by now that there are many people (myself included) who disagree. I think software patents are bad in and of themselves. Longish duration only adds insult to injury.

I do agree, though, that 5 year limit would somewhat limit actual damage. I wouldn't consider it optimal, but it would be better than current situation. Especially if application process could be faster (which may be difficult to realize with the backlog they have); so that end-to-end (patent idea to patent expiring) would be limited to maybe 7 years at most.

SCO business model

[Anonymous Coward]

At this point, he would show his patent and the infringer to potential investors. Sooner or later, one would say, "yeah, looks like you can nail those bastards" and agree to finance him for a hefty cut of the proceeds. It might work.

SCO business model, sure, nothing broken here.

Re:SCO business model

[julesh]

SCO business model, sure, nothing broken here.

Except what I'm not talking about is fabricating claims that are highly unlikely to be true and somehow conning people who ought to know better into believing them.

All wrong..

[sadr]

He misses the next logical chain in the arguement.

To apply for COPYRIGHT registration on code, you should have to submit the source code. It would still be copyrighted, so people can't create derivitive works from it legally. But shipping copy-protected executable code certainly doesn't promote the progress of science and the useful arts. Having the source code available does.

open vs. free

[Tom]

RMS must be rotating in his... uh... bed or so.

This is where "Open Source" meets "Free Software" and the two don't agree, not in the least.

Free Software is incompatible with patents, both from the license terms (the GPL even explicitly mentions patents) and the spirit (sharing of knowledge).

Open Source allows such abominations as "you can look, but if you copy we'll sue you from Alaska to Hell".
Isn't that essentially what DRM is trying to do?

The idea is nice at first glance, much like patents of old required a working mechanical model. It does fit well to the basic idea behind patents, which is essentially "tell us all how it works and we'll give you some rights for teaching us".
It doesn't fit with Free in any sense. Whether or not it fits with Open Source depends on your philosophy. Mine certainly isn't one of prison-but-with-walls-of-glass. I prefer not having to live in a prison at all.

Re:open vs. free

[Fnkmaster]

What on earth are you talking about? I don't think I've ever heard anybody on Slashdot of all places say that source-viewable is the same as Open Source. Sure, the words themselves, "Open" and "Free" are open to all sorts of vagueries of interpretation, but at least Open Source doesn't suffer from the awful confusion surrounding the catchphrase "Free Software" which seems to get translated to the altogether semantically different "freeware" as often as not in mass media articles.

As to this specific proposal, the software is not-really-open-source during the duration of the patent, it's merely source-viewable, with the guarantee that when it comes off patent it will be truly Open Source. The real difference here is that people in the Open Source camp are willing to work with corporations and accept compromises in order to ultimately expand the body of Open Source work, whereas people on the Free Software side tend to be much more absolutist, oppose software patents in all incarnations, and basically believe all software should be Free as in Speech (and beer, since it's fundamentally implied by the former condition no matter what some here may say with absurd scenario descriptions).

The OSI has a rather clear definition of Open Source available, and the very first part of the definition is Free Redistribution. You are welcome to harbor your own definition of "Open Source" or "Free Software" that differ from those endorsed by the OSI or the FSF, and nobody can stop you from doing so, but don't pretend that your definition represents that of the majority of the FOSS community, or software developers in general.

Re:open vs. free

[bogado]

but at least Open Source doesn't suffer from the awful confusion surrounding the catchphrase "Free Software" which seems to get translated to the altogether semantically different "freeware" as often as not in mass media articles.

This actually is a short coming of the english language. In portuguese "Livre" (free as in software) is very diferent from "Gratis" (free as in beer). Pehaps the logo of the free software group should be in latin or esperanto, so it don't get so confusing.

Re:open vs. free

[Sunnan]

I don't think I've ever heard anybody on Slashdot of all places say that source-viewable is the same as Open Source.

Unfortunately, it's a very common misconception since not everyone is familiar with the OSI's definition.

"Open" is an ambiguous word, as in "open for reading/viewing" vs "open for changing/redistribution".

Adaptation

[mreed911]

The problem with the current patenting scheme as it applies to software is that it's a conceptual patent. Patents, however, were meant to protect applications of concepts.

Take, for instance, the fire service. My dad's a career fireman and sits on several technical committees that draft and approve the specifications for different types of equipment used in firefighting (specifically, breathing apparatus). Every time the specification changes (recently, to include a visual warning device in the face mask to display the percentage/amount of breathable air left in a tank), the vendors have to build new functionality into their gear. Each one has to design something that meets the standard, and each one patents their implementation of the standard, or licenses an already patented mechanism that meets the requirements. Point being, the vendors can't patent the CONCEPT of having a heads-up display, just their particular electro-mechanical implementation if it's something novel.

Software, on the other hand, has been allowed to patent a CONCEPT (such as one-click ordering) rather than a particular implementation simply because they claim that exposing their particulars with respect to implementation (source code) would give someone a competitive advantage against them.

Hogwash. In fact, it's easier to modify a physical device enough to get a new patent... it's harder to modify software to make it apparently distinct from the original patented source, esepcially if it's written in another language where someone is going to make comparisons not on a line-by-line basis but a method-by-method basis, and get into comparative analysis.

I agree that the system is broken and needs to be fixed... and I think the way to do that *is* in fact to require software patents to include their source code as well as a solid description of the methods used (perhaps an object model, as well?)...

Re:Adaptation

[jizmonkey]

This is perhaps the most insightful comment I've seen on Slashdot in months. I believe what you said about concept v. implementation to be true in practice, but legally, are you aware of a doctrine making this distinction?

I've poked around in Chisum (the leading patent treatise) and not found anything. I would tend to believe that this is not a legal principle, but rather a consequence of the lower standards for software patents generally. (e.g. in the written description requirement)

It would be very useful for one of the law journal articles I'm writing if there were in fact an authority putting forth this principle.

Do you know of one?

Source of confusion == SCotUS

[Anonymous Coward]

I suppose if we had some justices that weren't old enough to have purchased gasoline by asking for 'Ethyl' or 'high test' there would be some better decisions coming out of the Supremes.

Things are changing too fast for such a small group. We need a position like 'Technology Interpreter for the Supreme Court' to brief these people on what they must decide on once they've heard the case. Stop leaving it up to the obfuscating, heavily invested suits that strut before them in cases like Big Stupid Venal Monied Corp. vs. Small Very Intelligent Creative Persons.*

* An actual case. :)

Grain from Chaff

[faqmaster]

Bray's suggestion seems a lot like the way the system originally worked. Didn't patent applications originially have to include a small working model? The two big problems are business methods patent (completely wrong-headed), combined with all-inclusive language (just sloppiness). Used to be, if you patented an improved thresher, you had to send along a small working model of what you were applying for, not just an application that said "A method and procedure for seperating grain from chaff...."

Uhh...

[Anonymous Coward]

This guy definitely has no idea of what patents are supposed to be.

Complaining, but doing nothing.

[Anonymous Coward]

Now what i see on this board is everyone complaining about this guy's idea, and what is wrong with it, while we have a patent system implemented that the worst of all of them. Stop complaining about peoples new ideas, and take care of the ones that are already implemented. Right now any form of new patent law would be better than what we currently have. So stop complaining about ideas and start implementing them - cause any rough idea is better then the crap we got now.

Re:open vs. free vs. debian

[Uncle Op]

This is where "Open Source" meets "Free Software" and the two don't agree, not in the least.

And this is where the debian folk try to tread when they decide which packages are "free" and which are not.

Unfortunately, from an end-user perspective, it can be quite tedious. Sometimes a package goes from "free" to "non-free" and unless you have your ducks in a row, you lose it.

So: how do you want to get paid? If you only want to be paid in the satisfaction of a job well done and/or helping others, Free Software and Open Software are probably close enough for you on the pragmatic level, so long as nobody comes after you claiming their own rights. But if you want to make money (barter, whatever) so that you can eat and have a roof and a 'net connection, Bray does hit the nail: others out there can easily eat your lunch.

I don't see a perfect solution here. I knew the fellow who claimed to have "the" patent for color TV, which, as an employee, he had to assign to RCA. AFAIK, he wasn't a millionaire, but he had a secure job for the rest of his life. RCA evidently recognized his contribution and treated him "fairly". Unfortunately, the world tends more to Scar of The Lion King, as he says to the mouse, "Life isn't fair..."

Inconthievable

[IcyHando'Death]

"...While he deprecates the 'business-method' patents like one-click ordering..."

You keep using that word. I do not think it means what you think it means.

IM

nope - too expensive

[relativePositioning]

Patents are unbelievably expensive compared to copyright. There are two ways that they are expensive.

• The thousands of dollars to draft and maintain a patent (copyright is free and instantaneous)
• The years of time it would take to comb through every patent, understand it and know for sure that you aren't violating any existing patents

The second point makes the system entirely un-workable as there are so many patents that it is impossible for any one person to be sure that they aren't stepping on someone else's claimed invention. What makes the system just laughable is that now ideas are being patented (software and business processes) which are vague by nature. On top of this ridiculous situation is the notion of triple damages if you are almost aware of a patent that you later infringe upon (so you are horribly punished for trying to play by the rules and read through ambiguous patents). The system is horribly broken and stacked many times over against the little guy. I deeply wish that the case law that made software and business process patents legal is overturned quickly.

Godspeed EFF, you fight for all of us little guys and gals.

Re:nope - too expensive

[NoOneInParticular]

Maybe we should approach this the other way around. Instead of looking for ways to protect against patents and/or get patents for OSS, why not play the game to its ultimate consequence. Start up a website and start matching patents with software: when a likely match is found, notify the patent holder, the software vendor and possibly the software users of this potential patent violation. For the large fish (IBM, Microsoft, etc.) focus on patent troll's: litigation companies existing merely of a patent portfolio. If lots of companies are targetted, this would create a lot of publicity and when there's a website to back up the claims, there's a lot of proof about the untenability of the situation. Furthermore: it only takes work, not deep pockets to do this.

If the situation is as bad as is claimed, this would mean that any software vendor and/or webshop is forced to concede the fact that they can be put out of business overnight due to patents. Once this awareness is there it would just be a matter of time before the case law is overturned.

Excellent summary

[brlewis]

Well said! Well said!

Only one slight clarification: Software patents do not need to be repealed, because they were never legislated. The US Supreme Court has always held that software for general-purpose digital computers is not statutory material for a patent. What is needed is legislation that clarifies that no software is statutory material for a patent. In the meantime, we need a policy at the USPTO that is consistent with the Benson, Flook and Diehr cases.

Algorithms == Mathematics

[slipstick]

All ideas for Software Patent reform ignore this simple but basic equality. Regardless of the complexity of the data handling that we have enabled our software to perform it still just comes down to bit-twiddling. Adding, subtracting, multiplying and dividing ones & zeros.

No matter how ingenious we get at it, mathematics has never been a patentable commodity. The fact that software has patents is a failure in the education system to properly teach this very basic concept. A concept that any 6 year old should be able to grasp.

As I get older, I become more a realist, so whatever methods can be used to reduce the harm from this stupidity is not out right a bad idea. However, we must always keep our eyes squarely on the fact that we have perverted the use of patents completely and the long term goal should be to out right ban software patents of any form.

There are places where software/algorithms can be used to elucidate a patent, but they still cannot be an essential element of receiving a patent. Basically I'm thinking here of embedded controllers and such, where the softare is used to guide the operation of hardware. The hardware itself can receive a patent but not the software. In fact one test of such hardware's patentability should be the idea that all essential data handling, manipulation etc. could be abstracted in to software, if all you have left is a broom than all you've patented is a broom.

Software patents stink.

[Spy der Mann]

In fact, I think the whole patent system should be gone, and replaced by something completely new. Reason? Patents were designed to ENCOURAGE INNOVATION, due to the possible money income for the inventor. The Wright brothers patented their flying machine (nobody paid them sh*t, but anyway), Edison patented the light bulb, etc. Patents were a good thing. Were. Now they've become only another mean to enrich megacorporations in spite of the poor. Current software research is based on OTHER researchs. And designing programs isn't a big deal. Software today couldn't be made without the contribution of the thousands of people who made the tools for it. i.e. who would have come to the idea of having Object Oriented Programming if it wasn't for procedural languages? Did the people who designed them agree on people getting rich via patents using THEIR inventions?

It really comes down to this...

[jocknerd]

We can analyze and discuss ways of making patents work and work for open source software till we're blue in the face. But it really comes down to this:

Software patents suck. They have no upside except to large corporations to try and maintain dominance.

great idea

[GISGEOLOGYGEEK]

Great idea. Here's your patent but you also have to give it away free as open source right away so that you have a much harder time making your investments back.

Ya, that will really spur innovation. I'll work for free so that you can take it despite the patent

necessity is a mother

[Doc Ruby]

I agree with Bray about the consistency of patents with Open Source (and the insanity of intangible "business process" patents and their ilk). But you can't patent the prototype and sell the proprietary, secret final product. That's why source code is covered by copyright, and only actual binary images with published source ought to be covered by patents. Software is uniquely compatible with patent requirements for working models, design documentation, and searchability for precedent and references, not to mention demonstrations and available analysis experts. The source helps courts decide when a "reasonable facsimile" infringes a patent, and helps info architects both avoid reinventing the wheel, and deciding whether that wheel will run on their roads when they invent a new car that could license it.

Infringement and Open Source Implementations

[Anonymous Coward]

IANAL and I believe ipgeek in saying that its an infringement to practice the patent except under very very specific fair use circumstances which you wouldn't likely fall under.

The key word, however, is "practice".

Is the source code for a system which must be compiled practicing the patent? To me, logic appears to dictate that saying how a patent works is not the same as practicing it. For instance if a prof explains the patent in class and shows the text of the patent, there is no infringement. And there can be no greater example than providing the specification for a patent or (in the case of a software patent), providing the source code in the patent application. Clearly the source code as printed in the patent document cannot constitute the practicing of the patent: the patent performs a useful result and that useful result is NOT obtained when reading the patent application. I know law sometimes like to skirt logic, but this, to me, is a logically necessary separation between the description of a patentable thing and the thing itself.

So I cannot see the argument why distributing source code should count as a patent infringement. If all software patents came with source code, we could imagine a system that would download them for an infringer and compile them an execute them, but the infringement would be occuring at the use site, not at the publication site. I fail to see how any publisher of source code for a patent should be held up for patent infringement.

Of course free software is a commercial enterprise

[Anonymous Coward]

Or is Red Hat not an example of an enterprise that makes money on free software? Why should they be allowed to free ride (if one assumes software patents are valid)?

DISadvantage?

[Anonymous Coward]

And how is this a DISadvantage? That is exactly how the public would benefit from that patent. Otherwise a lousy programmer could force us to license a bad implementation instead of creating a good one. It's not the fundamental idea that can be patented, only the implementation. The least you can do is tell everybody EXACTLY what to avoid.

Nice in theory...

[sharekk]

I don't think the author really thought this out well. The point of software patents is to protect indivduals and companies from competition when they come up with an idea. For example: a random developer comes up with an incredible new idea for an unheard of system. He goes to patent it but is now not allowed to get that patent until he has written a prototype of the entire system. While he is working his way through hundreds of thousands of lines of code on his own, a competitor gets wind of what he is doing and designates an entire team to code an implementation and get the patent first.

Some projects take years with hundreds of developers working on them to get into a working state. Think of IBM for example - if any small company had thought up the ideas behind the products of Tivoli or Lotus do you think they could have provided a prototype to go with their patent? If not, this addition would make software patents even more useless and harmful to small companies and individuals then they currently are.

Re:Nice in theory...

[Anonymous Coward]

Think of IBM for example - if any small company had thought up the ideas behind the products of Tivoli or Lotus do you think they could have provided a prototype to go with their patent?

Uh, do you have any idea of kinds of components that are patented? Lotus, for example, would contain hundreds if not thousands INDIVIDUALLY patentable parts. It would be impossible to write a single patent covering any complete and useful software system -- and that's why it's not done. Plus, it's generally better to have more patents; portfolio size is determined by number of patents, not by scope of patents involved.

The whole software product is generally more protected with copyrights (and brand, where useful, with trademarks), not with patents.

And trust me, software patents are already completely useless for individuals... and for the most part, only marginally useful for small companies.

I think that the requirement for working prototype would be the most obvious improvement to the current system; closely followed by shortening of patent protection period from 17 years to at most 10 years, preferably 5. I would prefer abolishment of s/w and business method patents, but if one just wants to patch the broken system, there are some easy improvements.

It's *not* a "good alternative"

[IBitOBear]

Read the commentary that goes wiht the article on Groklaw. The article is good, legal-sounding political speach.

That is not the same thing as a good idea.

If software patents were, by ANY stretch of the imagination, good for the business of innovating software then the ninties-through-today (the domain of time when software patents have existed) shoudl have produced several more Software Company Levithians than the eighties.

Where are they?

How did the eighties-and-before produce Microsoft, Lotus, SAIC, Computer Associates (etc, etc, etc) in the absence of this boon-to-innovation?

ALL evidence suggests, and NO evidence opposes, a simple truth, that patenting software is *only* efective in keeping innovative new entities from competing against larger, established business entities.

This is *not* a reasonable definition of "promoting innovation."

Statement: Software Patents are Bad.
Repeat statement as necessary.

XML sucks DIE!

[Anonymous Coward]

I hate you

I disagree.

[Featureless]

Let me try to convince you. You actually remind me of someone talking about spam circa 1995. "Oh, sure, it's an annoyance, but it's just a cost of doing business, you'll never stop it, life goes on, etc." Fast forward to today, when I get 200-300 spam a day, phishing is a multi-million dollar industry, and for many applications email is becoming useless.

You have to think 10, 20 years into the future, and consider what the software patent system will look like as it scales. The body of patents will grow and their "legitimacy" will as well. You're right, currently they're hardly ever enforced. But every year we have more software patent action than the year before. Taken to its logical conclusion, this is a system that renders software development as we know it impossible, and it is simply stating the facts that our domestic software industry would indeed wither and die in that scenario. This is hard to refute, because it is impossible to do any uninfringing software development at all. Certainly it would be impossible to compete successfully with developers from any unencumbered country.

The only option is a defensive patent portfolio and a healthy legal department. But even if you say "OK," write off 99% of the companies in the business, kiss innovation goodbye, and welcome the mini-monopolies of the few remaining giant corporations, that doesn't work against outsider or IP-only firms that aren't in your industry, that you can't cross-license with. So even the big firms will continue to get twisted.

It's impossible to safely work under this system. I cannot find anything in what you say that touches this basic point. The best I can make out, you're suggesting that we'll keep this equilibrium, where most patent holders are afraid to ride the pony too hard for fear she'll break a leg, and we'll maintain some kind of status quo. But there is no equilibrium. All that will happen is that, sooner or later, either the law will change, or we'll move further towards the regime's logical conclusion and software development will become something that's done overseas.

Most likely scenario: you'll see software patents seriously overhauled or invalidated altogether within a year a of any giant corporation (like Microsoft or IBM) finally losing patent roulette and being forced to write a 9 or 10 figure royalty check to some tiny upstart.

Re:I disagree.

[Minna Kirai]

That's a really classical demonstration of the slippery-slope fallacy.

Fast forward to today, when I get 200-300 spam a day, phishing is a multi-million dollar industry, and for many applications email is becoming useless.

I must have smarter ISPs or something. I've gotten fewer than 5 spams this year, and never more than 50/year across the past decade. That's not to say it isn't a problem- the public has lost an important ability to freely hang out your email address for unsolicited correspondence on topics of interest. But it's not apocalyptic.

stating the facts that our domestic software industry would indeed wither and die in that scenario

Statements like that aren't worth the time to refute.

Certainly it would be impossible to compete successfully with developers from any unencumbered country.

WHAT encumbered country? They're rare today, and another one dies every few years. It's called WIPO. Even though some Banana Republics will host regenade programmers, executing that code inside WTO nations will earn you a BSA audit, or worse.

So even the big firms will continue to get twisted.

They're not twisted today, and it's theoretically possible for a non-event to "continue". All that happens is they spend $300,000 on legal fees every couple years. No problem for a megacorp, especially in exchange for having destroyed all small/start-up software houses.

All that will happen is that, sooner or later, either the law will change, or we'll move further towards the regime's logical conclusion and software development will become something that's done overseas.

No. That's "Black & White" thinking in a Greyscale world. You point out two extremes, and then claim that one of them is inevitable (but you don't know which)

In reality, complex problems almost never go completely one way or another. Abusers of a priviledge are frequently smart enough not to go too far and rock the boat. Killing the USA programming industry would be rocking it.

Re:I disagree.

[Featureless]

I must have smarter ISPs or something. I've gotten fewer than 5 spams this year, and never more than 50/year across the past decade. That's not to say it isn't a problem- the public has lost an important ability to freely hang out your email address for unsolicited correspondence on topics of interest. But it's not apocalyptic.

You are kind of insinuating I am just unlucky. But this is purely a factor of your address's age and what you've done with it. My address is old (1992) and I haven't kept it secret or changed it. All this means is that it has been published on websites, associated with some usenet posts, and given during purchases to many retailers, some of which are bound to be shady with regards to their privacy policy.

Spam filters are great, right? Half the time you never see the false positivies, so we tend to overestimate their acurracy. But no matter, now they're required for me and millions of other people to use their email every day.

But if you read back I made a point of saying "for many applications." This is because the process is greatly accelerated for many kinds of email addresses - i.e. those which must be published on the web, where they can be picked up by crawlers. I made some money this year helping two major online news sites (who will be comfortably anonymous by virtue of how common this process is) sanitize away every internal email address on their site (i.e. info@ editor@ citydesk@ writerxy@) and replace them with HTML forms because the volume of spam for any non-secret address increases rapidly until it is impossible work to sort through it all without a spam filter.

Hence, for many applications email is becoming useless. And if you check again, you will see that I never claimed this is was apocalyptic - only that it was an example of the problem of scale. Most people didn't think about it until it happened.

Statements like that aren't worth the time to refute.

Certainly, you're not required to. Keep in mind, though: I have backed this statement up carefully and in detail, so I put forth that it is only not worth the time to refute because it is very difficult, if at all possible, to do so.

WHAT encumbered country? They're rare today, and another one dies every few years. It's called WIPO. Even though some Banana Republics will host regenade programmers, executing that code inside WTO nations will earn you a BSA audit, or worse.

You mean what unencumbered country? Most! Europe is currently debating about whether or not to recognize software patents - they currently do not. Similar situation in India. If China does in any real capacity, regardless of what they say officially, it's news to me.

They're not twisted today, and it's theoretically possible for a non-event to "continue". All that happens is they spend $300,000 on legal fees every couple years. No problem for a megacorp, especially in exchange for having destroyed all small/start-up software houses.

1) They are absolutely getting twisted today. Eolas just won a stunning half-billion dollar judgement against Microsoft. That's not "sued for." That's "awarded." Now this caused a lot of heartburn, and already it's falling apart - I'm pretty sure Microsoft has the beans to make it go away. But the point is, look how close they got. There are now three dozen others who saw dollar signs from that headline. How long before one of these plaintiffs succeeds?

2) $300,000 on legal fees does not seem like a sane assessment of patent-related legal costs. Frankly I've been on both sides of litigation, and count many lawyers among my friends. With a good legal team working against you they can tie you up in court procedures till your eyes bleed and your ears fall off. You will spend $300,000 in one month of serious civil litigation. I'll cite Stallman, referenced in this very article in fact: "I heard of one patent case, the defendant I remember was Qu

Another shower idea from a "notable"

[Anonymous Coward]

This is fine, many of us have these kinds of ideas in the shower, while driving, or whatever. And they're great conversation fodder. But they're not ready for prime time community discussion unless they're developed into a more comprehensive proposal, answering stuff such as the term of the patent and the license that the open source code would be issued under. These are anything but "minor legal details" - that is the whole trick.

Re:Of course free software is a commercial enterpr

[Mr Smidge]

The anonymous coward parent should be modded up as a good question.

Red Hat make their money from services, don't they? Support contracts and so on?

That doesn't have to do much with developing the code other than the loose tie-in that they might know more about the code if they wrote it.

Of course, when the code is freely available for all to view, anybody who understands code can take a good look at it and offer their own independent support contracts.

Red Hat modify linux and the overlaying system tools, but they don't directly sell *them* (it's free software, after all). If they add anything on top that isn't free software, then by all means apply patents to that.

Re:Hum?! (software patents and disclosure)

[aisaac]

"[US] court rulings raise a very interesting question in cases where source code is not judged as crucial to enablement. If writing the necessary code is 'normally' within the skill of the art, can the software invention still pass the test of non-obviousness? This suggests that there should be a substantial burden of proof for any patent applicant who claims non-obviousness for a software-related invention but simultaneously insists that source code provision is unnecessary. The ability of a programmer to do without the source code suggests that any skilled programmer approaching the same problem might produce the same solution: i.e., it suggests that the invention is obvious to someone with normal skill in the art. Thus software patents appear to create a quandary: either the system is permitting the patents of some obvious things or it is relaxing the enablement requirement."

from: Isaac, Alan G. and Walter G. Park, "On Intellectual Property Rights: Patents vs. Free and Open Development" chapter 18 of the Elgar Companion to the Economics of Property Rights.

Not-A-Patent Registry

[ldg]

Imagine if patent clerks were required to search registries of public-domain and other free-license IP for prior art before issuing a patent. Instead of defensive patenting, IP creators could simply publish their IP to the registry.

Free-IP ideologues could rush to publish all of their wild ideas as public domain, GPL, or whatever, just to make sure no money-grubbing corporation ever gets a patent on it.

Registries might just be such things as SourceForge and CPAN or might be established specially for this purpose, with a record format similar to that of the actual patent registry. Maybe it could be called Not A Patent Server (NAPSER). ;-)

Wouldn't this benefit all parties? All that is, except the patent lawyers, USPTO, and the government that is diverting the patent fees for general budgetary needs?

-ldg