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IBM Calls for Patent Reform
daria42 writes "IBM has called for tighter regulation of patents and a review of intellectual property ownership issues in collaborative software development. The company is one of the largest patent-holders in the United States. IBM executive Jim Stallings said examining patents for prior art should not only be the job of the patent office but that the wider community should be involved. Stallings also called on the industry to stop what he calls "bad behaviour" by companies who either seek patents for unoriginal work or collect and hoard patents."
... is that "they" have quite a wide scope of view.
Presumably a prerequisite for "culture" in general.
CC.
TaijiQuan (Huang, 5 loosenings)
It seems IBM's argument is that there are way too many patent applications being submitted to accurate evaluate them. Their solution:
IBM's antidote to the problem is to increase the scope of the investigation into 'prior art' associated with software patents. Stallings believes that sort of undertaking is something the academic community, volunteers and others are willing to help in.
Something obviously must be done to fix this problem but I'm not sure how the proposed system would work. As soon as "volunteers" have the ability to submit prior art challenges to patent applications, you'll likely see as many or more prior art challenges than patent applications. Who's going to evaluate the prior art challenges AND the patent applications then?
I'm a big tall mofo.
By making their patent on patent reform available for a small fee.
And what about going back to the good ol' days when you had to provide a basic working implementation of your potentially patented thingie, instead of just having an idea of what may work in the future?
Hello, kettle. This is pot. You're black.
"There are others who believe that no software patents are valid," he added. We certainly don't believe in that, because we have many thousands of software patents and customers trust us to be the true owners of those, so we believe it is somewhere in the middle that is appropriate for laws to govern behaviour around patents."
It's nice to see a large company choosing the middle path. Patents aren't entirely a bad thing (although I would rather do away with them altogether than keep the current system) and as with most arguments there are certainly two or more legitimate sides to this. One thing is for sure, we definitely need better review of patents and it certainly seems to me that they are right about the community being willing to help find prior art.
On February 24, 2005 I tried to pose some questions to USPTO On-Line chat for Independent Inventors today, however the digichat java applet does not appear work with any combination of Linux Galeon/Mozilla/Firefox jdk1.5.0/j2re1.4.2_07 or MacOSX Firefox/Safari. Here is what I tried to ask:
I understand that the discovery of prior art and the evaluation of the obviousness of an invention are difficult tasks for the United States Patent and Trademark Office (USPTO) patent application examiners to perform. The percentage of patents being overturned under the scrutiny of the courts leads me to believe that the process is not quite as accurate as could be desired. In a few recent cases the existence of publicly accessible digital content has played a part in disclosing prior art. The public, technical and scientific communities use of Internet has to a large extent replaced printed media such as journals for the public disclosure of new ideas. To what extent does the current USPTO patent application examination process take into account public accessible website content? Do the patent examiners currently use Internet search engines such as Google ( http://www.google.com ) to locate instances of prior art? Is the changeable and unverifiable nature of some digital content a barrier to its being cited as prior art in the patent application examination process?
The USPTO patent application examiners task could be made more reliable if the examiners could consult one or more public online registries that document cases of prior art and public discoveries. The online registries could provide a means for the public to retroactively point to cases of preexisting prior art for pending patent applications and a means to proactively document publicly known ideas and concepts. Although websites and digitally stored content in general is changeable, individual entries and changes in an online registry could be legally authenticated by means of digital timestamping ( http://www.rsasecurity.com/rsalabs/node.asp?id=234 7 ). An online
registry could be hosted by the USPTO as an adjunct to the existing
online public patent and patent pending databases. The USPTO could also
publicly recognize other individual registries hosted by third parties
such as a commercial entity or a non-profit community similar to
Wikipedia ( http://www.wikipedia.org/ ). An individual adding an entry
to such a publicly online registry does not involve granting that
individual any form of monopoly, therefore the action need not have any
artificial barrier involving fees or payments. Would the existence of
digitally timestamped public content overcome any objections by the
USPTO to its citing as prior art? Has the USPTO any plans to add some
form of publicly accessible feedback mechanism to the patent
application process?
It has been nine years since the USPTO updated the Guidelines for Computer-Related Inventions ( http://www.uspto.gov/web/offices/com/hearings/soft ware/analysis/computer.html
). Since that time has the USPTO undertaken, commissioned or evaluated
any studies on the effects that granting software related patents has
had on the progress of science, useful arts and the software industry
in general? If no such study has been performed or evaluated, why not?
Can the USPTO point to any instances where the granting of software
related patents has been an actual benefit to the progress of science,
useful arts and the software industry in general? In a similar vein,
can the USPTO point to any instances where the granting of business
method related patents has been an actual benefit to the progress of
science, useful arts and industry in general?
I work for IBM.
Mod me up!
Dear Patent Lawyers,
Could you please justify by reply in moderate detail the supposed net benefit to society (rather than just to corporations) of software patents explaining why you think that extending the patent system to cover software is not harmful both to society and to freedom of expression given the case of an open-source software developer who, as a result of
is threatened with a patent lawsuit by a corporation demanding he/she removes the allegedly infringing software from the project's website, leaving the impoverished developer with no real choice but to comply with the demand and close the project?
One recent unresolved case, which is not unique, is that of the German mathematician and open-source software developer Helmut Dersch who had no financial choice but to remove his software from his project website. He had no money to pay for a patent application at the time of his own inventions, which pre-date the patent application of the IPX company , to to pay for a lawyer to challenge the company which threatened him with the prospect of a lawsuit.
Here is a summary of the case history.
I hope you will take the time to reply at moderate length for the sake of explaining to the open-source developer community why software patents are not a threat to completely unfunded open-source projects.
Thank you for reading this. If you are a patent lawyer, please mention that fact in your reply here.
Last posted here without a reply from any patent lawyers reading slashdot.
Please copy and re-post this message in all available forums until at least one patent lawyer has the courtesy to write a thorough reply.
Yesterday's New York Times had a related article (do not pass Go, sell your soul). One of the points was that IBM is sharing some of its patents so that others may build on them. Collaboration is more economically efficient (ie. profitable) in the global business-space.
To-do List: Receive telemarketing call during a tornado warning. Check.
Prior art challenges can go back to the applicant who can then put together a rebuttal. They want the patent, let them do the work. Also, more money will go to the patent lawyers, so this proposal is sure to be adopted!
The very fact that IBM does indeed have a ton of patents, yet still wants tighter reviews over patenting procedures and improvements over the current guidelines means that they are even looking towards their own current patents.
It would be one thing for a company without patents to scream "The patent system is screwed!!! fix it!", leaving everyone calling that company a whiner.
But it another thing when a company with tons of patents says the exact same thing, even if the reformation change can hurt them. This means they are willing to take losses of their own for the benefit of the patent process.
Here's the problem. In order to patent something, it must be either something completely new, or a novel enhancement on something that already exists. The problem that exists, is that companies can simply take something that already exists, and add "On The Internet" to it. We as tech savvy people see this as a big copp out, and think these patents of bogus. Well, it becomes really hard to figure out when doing X on the internet really is novel, while doing Y on the internet is not. If taking one thing and adding "On The Internet" is a valid patent, then taking any thing and adding "On The Internet" should work.
Anthropic principle: We see the universe the way it is because if it were different we would not be here to see it.
It's good to see how the taste of their own medicine in cases such as the SCO litigation finally seems to lead IBM back to their initial stance of speaking out against software patents - from one of the world's largest patent holders, the obligation to "use or lose IP" as in trademark law is quite a remarkable one.
Whereas the patent portfolio for Amazon is filled with things like "one click shopping" or whatever, IBM has always done *EXTENSIVE* research. They make chips, and have a gambit of patents associated with them. They even work on things like teleportation for crying out loud. Yes - like "beam me up, Scott" type teleportation.
No - IBM isn't Dell, a company that has never come up with anything new and does little else other than figure out the cheapest way to produce something. IBM isn't even a Microsoft, a company based entirely off taking someone else's ideas and implimenting them in proprietary ways (a compnay whose only real contribution is getting platforms and applications to work together well). Instead, IBM is very very heavily research-based. IMO, it's perfectly valid for IBM to have a vast # of patents, considering how much research it does. Dollar per research dollar, I'm willing to be it doesn't have all that many more per year than anyone else - they just put more dollars into it.
With that in mind - suggesting they're the pot calling the kettle black is a bit of a stretch. They've got a lot of patent experience sure (there's a nice soft word for it, eh?) but back to that dollar per research dollar thing...
If Cornell and Harvard got together and tried to get higher education to be more affordable for all Americans, would their intent be questioned simply because they're a couple of the more expensive schools? I pay $30k a year for my wife to go to vet school at Cornell. It's very painful. Cornell knows it, and is sympathetic to a degree...I know they would have loved to have seen Clinton's promised education costs reforms.
Same bit. IBM does a lot of research, gets a lot of patents. Simply because they have a lot of patents doesn't invalidate their opinion that there is abuse of the patent system.
I have a little trouble with IBM's stand on this in terms of motivation. What business edge would this give to them?
Their not-so-low profile thier sponsorship of open source stuff, releasing all of their patents to OSS projects and their professed patent protection (that was IBM right?) leads me to think they are attempting to woo certain crowds. These same crowds who are a bit fearful of patent issues with OSS perhaps?
Maybe they are truly pushing for an OSS marketplace... for IBM, it would tend to make a great deal of sense since they are primarily a service oriented business now. They still have products to sell, but mostly, it's the service agreements that make their bread and butter. If they get everyone thinking that way, it would put a serious hurt on people who sell software as a product.
Generally, I am inclined to agree with this perspective on things -- what slashdotter wouldn't I suppose? But if they are willing to divest themselves of thier patent practices, I wonder what else they have in mind to follow-up on this? After all, it is "patent trading" that often keeps big businesses from tearing at each others throats with patent litigation every 5 minutes. It has been generally accepted practice not to question or try each others' patents as they will be exposed to the light and probably die from exposure. This serves only to keep the little guy from growing though...
well anyway... any guesses what IBM will follow with next?
Yeah, there really needs to be a public comment period for patents before they are granted, but I think that the patent office is more interested in collecting fees than being correct.
IBM's position on patents is not arbitrary.
They do a lot of research, so hold many patents, in software and other domains. I'd say that most of these patents are well-researched and original, and even if we don't like software patents, IBM's are generally the least obnoxious.
They sponsor a fair amount of open source, through the Apache Foundation. Sure, this could stop tomorrow.
But, they have started to rely on open source as the basis for many of their lucrative services. IBM has really aimed at ending their own software development and replacing much of the expensive and risky software research by much cheaper and more efficient open source.
And who is most threatened by all this open source? It's Microsoft, who has also been the only significant competitor to IBM in the last two decades.
Microsoft is desperately collecting patents because it can see no other weapon or strategy to stop the open source revolution. IBM sees what Microsoft is doing - trying to collect patents that will harm open source projects.
So IBM is (a) protecting its own investment in patents, by preparing arguments why the entire software patent scheme should not be scrapped, and (b) aiming a warning shot at Microsoft and other patent freaks to behave, or they will be the target of non-trivial lawsuits.
IBM wants, finally, to make its patents open for open source, which it feels creates significant value for its own branded services, while preventing commercial competitors from using them.
This is not a random strategy, and it's unlikely to change over the next 20 years. If anything, expect IBM to defend open source use of patents, while trying to keep software patents "clean" so that it has the most weaponry against competitors like Microsoft.
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IBM spends billions on R&D every year. They are one of the companies that actually invents the things it patents. Gerstner finished what Akers started - heavy investment in R&D. Only Gerstner was able to turn that into a royalties payoff. Now just about every chip manufactured today employs IBM-invented technologies. So, they're in a much better position to follow Gerstner's mantra - "it doesn't matter who's box the customer uses, as long as IBM gets paid."
Patent abuse tends to dilute IBM's position as a R&D-to-royalties focused technology company. They are simply protecting their position. I suspect other R&D-heavies (HP, GE, etc.) will back this, if they're smart.
There exists no way of exchanging information without making judgments. --Bene Gesserit Axiom
Well the patent system does need a change.
I was wondering what do you think about such change:
Only an limited number of patents to be granted every year. Let's say 500 patents.
This way only really important inventions (not innovations) will be honored with `limited goverment granted monopoly`. The patent office will throw faster the obvious and broad patents, and will have more time to focus on the really good candidates.
As a side effect the less probability of granting patent will discourage the firms to fill as many patents as possible.
The really good thing is that there will be an limited number of patents that could be checked more easy (e.g. only 10'000 valid patents at any time)
The only question is what to do with already granted patents. I think that limiting their life would be good idea. For example cutting to half the rest of their life would be an good option. So if patent is just issued it will have 10 years, but if it would have 4 more years left, it will last only for 2.
Why? IBM plays by the current rules of the game BUT IBM also wants the rules to change. There is nothing two-faced there. In fact I believe this is the only way they can really go here: If some IBM big shots decided to one-sidedly start 'playing fair', they'd probably be sued by their stock holders.
If you've read patents, you know how vague and dry they usually are. If you think you're going to get volunteers and the academic community to do prior art research for you in a structured way, on all patent applications, you're nuts.
I can understand IBM's interest in patent reform. Maintaining a patent portfolio like theirs is not cheap, and they're a giant litigation target. Given their R&D, they're likely going to remain the 800-pound gorilla in patents no matter what the rules are.
A much better solution would be to place more of the burden of the patent process on the applicant, in a way that's easily verifiable. If an applicant was forced to more thoroughly justify why their work is exceptional, with a bias towards granting a patent as specific to the reference implementation as possible, we'd see fewer applications, which would give more review time to the examiners, and less patent collision, where multiple vague patents cover the same thing.
There's no failure quite as dissatisfying as a complete and total solution to the wrong problem.
People are responding to this with examples of IBM's own patentorial misdemeanors, pointing to the fact that they themselves hold numerous trivial patents. I feel that even though this may be the case, it doesn't necessarily invalidate their position on software patents as proclaimed here. To survive under the current patent system IBM has ofcourse seen it necessary to play dirty themselves, and there is a possibility that they do not like it, even though they are a part of it. Yielding the market to companies of possibly lower moral fiber would i no circumstances help on the matter. Cax
"Could you please justify by reply in moderate detail the supposed net benefit to society..."
That's far enough - there's no need to even mention open source or free software projects: the onus is on those who are proponents of software patents (or any other kind of patent) to show that they promote progress in the sciences and useful arts. It must be demonstrated by them that the overall effect is beneficial in each area of technology and in each industry to which the patent system is applied.
Patent attorneys and others will always try to hoodwink us into believing all kinds of nonsense about the patent system. They use words and expressions like "protection", "intellectual property" and "theft" to mislead people into believing that a patent represents some kind of tangible entity over which people have natural rights. But we should never forget what a patent really is: a government granted 20 year monopoly right to exclude everyone else other than the patentee from freely using some idea, whether they came up with it independently or not. Unlike a copyright, it is a kind of officially sanctioned and enforced removal of rights from everyone else and in the case of software patents it is a serious infringement of the tangible property rights of millions of computer owners.
Extraordinary interventions in the free market, that even entail curtailment of natural rights and liberties, demand extraordinary justification.
I'd like to add one more point:
If later research proves that the proposed implementation does not work, the patent should be rejected retroactively.
C - the footgun of programming languages
I'd add that patents on ideas that are highly likely to be reinvented by other teams are also highly likely to be unoriginal - with or without prior art.
Patents on such ideas do not just curtail the economically-sound interchange of such ideas in the future, they actively remove people's rights to the fruit of their own labour, the copyrighted works they produce independently.
A broad software patent can, at a stroke, turn a life's work into something with no value. Unlike patents on physical inventions, this is not unlikely... in fact it's going to become more and more common to hear about such stories.
The patent offices are, basically, in a corrupt symbiosis with patent lawyers, stealing ideas from the "commons", and turning the real inventors into peons. It's a classic abuse of the "tragedy of the commons", in which corrupt officials argue that the commons need "their protection" when in fact there is a well-functioning economy already in place.
It's much expropriating property - someone's house, or a park, or public lands - for business reasons.
Parkinson's law: officialdom will always expand to consume its budget. In the case of the patent offices, the budget is limitless.
The patent offices, and the patent lawyers, are IMHO the real villains of the affair. I am quite surprised that no-one has yet launched a lawsuit against the USPTO for larceny.
I don't think you will get many useful replies from the patent lawyers who read this.
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IAAPL. You should be arguing that patents in general do more harm than good.
Why should software authors have to worry less about patents than independent mechanical designers, chemists, or electrical engineers?
What's the difference between your hypothetical and a guy who designs a new engine on paper, proposes a new synthesis on paper, or sketches a new circuit on paper, and posts it on the web, whereupon some third party company picks it up and mass produces it, and the guy is threatened for inducing patent infringement (yes, there is such a thing)?
There is not much difference. I have heard the arguments that say software is special for various reasons, but you have to have already drunk the koolaid to buy them.
Remember, if you want to take the position that patents in general are bad, that's a very legitimate position.
But there is very little that is special about software patents. All inventions are mere conceptions, and it's all done on paper (except for drugs, which have their own ethics/cost/benefit problems).
Just FYI, in the U.S., there is a special "personal use" escape clause for "business methods" (which would be most algorithm/data structure type things). It is insanely worded and also limited. 35 U.S.C. 273. You probably want to know how that works. The same kind of "prior user" defense exists in more rational form in many countries.
I'm sorry. I can accept that patents in general may harm the penniless dreamer. But software is not special, and there is no credible reason to exclude it. The (unproven) net benefit is the same as it is with all other technologies(a disclosure for exclusivity bargain).
Freedom of expression - a red herring. Free speech is a very good reason to restrict copyright, especially for artistic works. However, software was treated as "expression" as a convenient legal fiction to shoehorn it into the existing copyright laws. But really, that makes no sense. You can't argue simultaneously that an algorithm is both a discovered law of nature and unique personal expression.
In summary, patents *are* a threat, but a 200-year old one that every other kind of technology has had to deal with. The reason to change is that the disclosure isn't doing anyone any good, so we (society) are giving something (a patent) for nothing (a worthless disclosure). That is not unique to software.
...therefore I will post this anonymously.
It is harder to get a patent through the IBM internal review process (which you have to complete before Legal will consider filing it) than it is to get the USPTO to take it. A team of other IBMers (usually inventors themselves) ensure that it is innovative and possible. The revenue possibilities are also considered.
I've put 11 ideas through the process, all of which I am reasonably sure would have been granted by the USPTO, and only 1 of those has been applied for. Three were thought worth protecting but not patenting -- they are published on the ip.com prior art database to prevent anyone else patenting them.
If all corporations handled patents as responsibly as IBM we wouldn't have a problem.