Reforming Software Patents with 'Marking'

sakul writes "Came across an article in the Stanford Law Journal that proposes 'marking' patented software to make the patents obvious to the public and to force large companies patenting software "to play by the same rules as holders of other kinds of patents." Interesting but technical read. Could this be a solution to some of the ever growing problems with software patents?" (Stephen Lindholm, the author of the paper, has provided a link to the paper itself, as well.) On the same topic, karvind writes "Gavin Hill, a film graduate, has produced and directed an interesting animated film on How Software Patents Actually Work. It's explaining the dangers of software patents and how they affect you and your business."

Comments

The Conclusion

[Flywheels of Fire]

This article argues that software patents could at least be brought in line with other patents by strengthening the marking requirement. Software patents are largely unjustifiable in the absence of marking.

One might object to the arguments presented in the second section of this paper as empirically unsupported--after all, the plural of "anecdote" is not "data." The rejoinder is that a half-billion dollar verdict is more than a mere anecdote,204 and the plural of these "anecdotes" is a shameful abomination. The burden is on the proponents of the current software-patenting regime to point out where the billions of economic gains can be found.

Re:The Conclusion

[AKAImBatman]

Mod parent up. After reading the paper I was left to scratch my head at the conclusion that "marking software is largely ineffective", yet we should "mark software to bring it more in line with physical invention patents".

The author does an excellent job shedding light on the difficulty of "process" and software patents, but his solution leaves much to be desired.

Re:The Conclusion

[Anonymous Coward]

I think the point is to make a start. Once everyone has to fire up Word and watches as it scroll through the 3000 patents it uses, it starts to get on normal people's nerves to actually do something about the piecemeal patent situation in the software world.

Re:The Conclusion

[Chosen Reject]

Then get rid of all the little patents and roll them into The One To Rule Them All. It goes like this...

I am going to patent the idea that everything can be done in software. There is no prior art since no one can show that their software does everything. But I can sue everybody because if their software does something then it does something my patent does. I'll be rich if only I can beat you all to the patent office!

Re:The Conclusion

[dgatwood]

It will be almost completely ineffective, not because it isn't a good idea, but because statistically most software patents are either for technologies that have never shipped in a working product or shipped in a working product that no is longer sold. For example, who here has ever even -seen- a piece of software written by Compuserve (GIF)? They wrote the software, patented it, said everyone could use it, then changed their minds.

Compuserve was dying as an ISP and was trying to prop itself up. Nobody used their GIF software because nobody used their service, and nobody would have been able to associate use of GIFs in Netscape with a patent in some obscure piece of long-forgotten ISP access software even if it had been marked.

And then there are companies like SCO... which solely exist to buy patent portfolios of dying companies and exploit them. Perhaps if those contents had been tagged at the time, the few folks who -knew- about the products would have known not to emulate them, but in many cases, the products were so obscure that no one knew about them and indepdently came up with the same idea.

Maybe if this had been done twenty years ago, it might make some slight difference now, but only slight. More often than not, the patents that are abused are patents that should never have been issued, on things that any idiot first-year CS student could have come up with, owned by a company with more money than sense.

Re:The Conclusion

[ajs]

The section on patent poaching alone should make frequent readers of Slashdot want this move. To quote, "Ideally, this reform proposal would put an end to litigation by patent owners who exit the software market, wait many years, and then sue the leading innovators."

Can you think of a company that would try such an underhanded tactic as dropping out of the software market only to then sue those who lead that market...?

Re:The Conclusion

[clodney]

Compuserve was not the holder of the GIF patent, Unisys was. IIRC, the patent had nothing to do with GIF files, it was a patent of the LZW compression algorithm - which GIF was.

Re:The Conclusion

[dgatwood]

Hmph. You're absolutely right. Okay, substitute beleaguered hardware/software vendor for dying ISP. Either way, it wasn't part of a shipping product that anyone could reasonably have known about.

Bottom line is this: has anyone ever heard of the Sperry corporation? From what I can find on the subject, they owned this patent, merged with Borroughs, and became Unisys. If you've never heard of Sperry, you wouldn't have heard about this patent. More to the point, they failed to disclose the patent pending status when publishing a research paper about the algorithm. The result was that the algorithm became popularly used prior to the patent being granted.

As far as I'm concerned, if you publish an algorithm publicly while a patent is pending and do not disclose the patent pending status, your patent rights should be summarily revoked....

This has worked for thousands of years

[nizo]

...the Stanford Law Journal that proposes 'marking' patented software...

I figure if dogs can use this method to demarcate their territory, why can't people? So now the question is, will Bill Gates mark each package himself, or will Balmer get to do it too? It seems like this job would be way more than any single person can handle.

Re:This has worked for thousands of years

[robertjw]

It seems like this job would be way more than any single person can handle.

Better switch to 3.2 beer.

Re:This has worked for thousands of years

[0x461FAB0BD7D2]

It's alright. Slashdotters have already "marked their territory" all over those patents.

Re:This has worked for thousands of years

[Soko]

I dunno, I think both of them cam manage. They've pissed off the entire industry for years already, and seem to be going strong.

Soko

Re:This has worked for thousands of years

[Anonymous Coward]

Or maybe just use American beer and cut out the middleman?

Re:This has worked for thousands of years

[sp3tt]

If Ballmer marks the packages, will the stamps say "Developers developers developers"?

Re:This has worked for thousands of years

[SunFan]

Watch out, though, the license agreement is a vial you have to drink!

Re:This has worked for thousands of years

[infochuck]

If Bill wants to "mark my package", he can, but I'll expect compensation.

Re:This has worked for thousands of years

[syousef]

Thanks for stealing my joke! :-)

In all seriousness though at least dogs only mark very limited territory whereas humans make stupid laws that allow other humans to mark way more territory than anyone could possibly need or use. If the rich people of the world were limited to what they could "mark" there'd be more for everyone else.

Lets do it! And lets call it the "all you can mark" policy. How long before someone marks the former markers!

Re:This has worked for thousands of years

[Anonymous Coward]

If you had posted about 3 hours earlier you could have beat me to it :-)

Here's an idea

[zymano]

Why don't the inventors of early languages ,computer and IT technology just patent everything and sue everyone. Then the courts will take on the matter.

Kind of like 'burn everything down' idea from Vietnam.

If the system is bad and allows abuse then this one way to kickstart something new.

Re:Here's an idea

[angle_slam]

Because they can't. It has to be patented within one year of first public disclosure. Obviously, C, C++, and the like have been out there for more than a year.

Re:Here's an idea

[brlewis]

So what? Software can't be patented either, yet there are tons of software patents. Just go ahead and apply for patents on the disclosed software.

Re:Here's an idea

[Anonymous Coward]

Are you sure? I had never heard of C until last year. And now I'm in the eighth grade so I've been aroudn for quite some time.

Re:Here's an idea

[angle_slam]

Software can be patented. Just because you think they shouldn't be patented doesn't make it true.

Re:Here's an idea

[brlewis]

That doesn't particularly bother me. What bothers me is that the US Supreme Court's thinking doesn't make it true either. Software patents are illegal in the US, but there they are!

Re:Here's an idea

[angle_slam]

What bothers me is that the US Supreme Court's thinking doesn't make it true either.

That's just a fact of the U.S. legal system--if the Supreme Court thinks it is legal-->it is lega.

Re:Here's an idea

[brlewis]

No, you don't understand. The supreme court does not think software patents are legal. Yet they are legal. (Law is what happens to you in court, not some legal theory with legislation and the Supreme Court at the top.)

good animation.

[AltGrendel]

The animation is a good one to forward to any one you've been trying to explain the software patient problems too that still doesn't get it.

Re:good animation.

[Anonymous Coward]

No it isn't and don't tell me you paid for an arguement!

Re:good animation.

[buhatkj]

Yeh I had already read a lot about it, but hadn't thought of it in too much detail or really digested the facts. After viewing that animation, the fundamental difference between copyrights and patents as applied to software, and what software patents would mean to the industry is very clear. Well done and informative :-)

Re:good animation.

[c0d3h4x0r]

Well, the animation would have been a good one if I hadn't been constantly distracted by the idiot narrator mispronouncing "patent" as "paytent", "Linux" as "Line-iks", and "GNU" as "G.N.U".

SP

[Anonymous Coward]

Could this be a solution to some of the ever growing problems with software patents?

NO, the only good software patent is a DEAD ONE!

Re:SP

[smittyoneeach]

Are you a MySQL founder?
http://www.eweek.com/article2/0,1759,1788062,00.as p

Re:SP

[NigelJohnstone]

Also No,

because it does nothing to stop the patent play companies who never make a product to be marked.

It does nothing to help disclose prior art outside of patented products, since only patented things need to be marked.

It does nothing for tarball products. Imagine receiving a Windows XP with a readme listing 70000 patent numbers.

There is no real penalty for overspecifying, its just bytes in a file. So companies will simply claim their software utilises all their patents. Without the code who can prove it doesn't? Rendering the disclosure worthless.

Re:SP

[Anonymous Coward]

I have never heard of any software development or innovation that required patent protection to justify the investment. Has anyone else?

So software patents fail justification at the first hurdle - they are simply completely unnecessary.

They have zero benefits and huge adverse impacts.

so solution at all

[ammoQ]

The greatest problem are submarine patents which do not even exist as widespread software products, so how could marking help?
The other problem are patents that lock proprietary file formats and communication protocols; marking these software products doesn't help to make software interoperable, the opposite is true.

Re:so solution at all

[somethinghollow]

"The greatest problem are submarine patents which do not even exist as widespread software products"

I often sit around drinking bottles of water while working on my submarine and think quietly to myself: "I wonder what patents would I be infringing upon if I made this a consumer product? This submarine patent problem is the greatest problem in the world today."

;) :)

Re:so solution at all

[Bellyflop]

The other problem are patents that lock proprietary file formats and communication protocols; marking these software products doesn't help to make software interoperable, the opposite is true.

I think the problem is that companies don't have any incentive to support software interoperability. In fact, they perceive disincentive as interoperability appears to have the potential to lower their software sales. We could mess with the free-market system however and legislate interoperability. Theoretically, that shouldn't be necessary, but we have to adjust the free-market system when monopolies are attacked anyway.

Re:so solution at all

[jmorris42]

> We could mess with the free-market system however and legislate
> interoperability.

Nope, there is a much simpler solution. All we need do is pressure our congresscritters to pass a law saying TAX dollars can't be expended on software that writes a closed format. But it wouldn't even have to be the government, any dozen of the Fortune 500 could mandate it in their purchasing manuals and the practice would end overnight.

Bottom line: users don't care because they have yet to understand the problem and/or be convinced they can actually change things.

Re:so solution at all

[Bellyflop]

Writing legistlature saying tax dollars can't be spent in that way is nearly the same as legislating interoperability - but I'd be against that since it might mean that students don't learn what's really going on in the marketplace, as the marketplace stands today.

Fortune 500 companies deciding that would just be the free-market system working its wonders. However, they don't have any incentive to do that since they still see the closed system as having the best available products.

Re:so solution at all

[jmorris42]

> Writing legistlature saying tax dollars can't be spent in that way
> is nearly the same as legislating interoperability

Not at all. Not any more than the old requirement for POSIX was legistlating interoperability. It just means the government would be saying interoperability IS important enough to put in a bid spec, same as requiring bibbers be bonded, supply a warrenty, or any other purchasing requirement. Does a bid request requiring the ability to read/write DVD+R mean a government mandated format for DVD recorders? No, it just means that government agency had standardized on it.

Bad idea

[Anonymous Coward]

Kind of "Parental Advisory: warning contains patented ideas". This is a really bad idea as it would simply give more authority and reality to patents.

Best thing to do is scrap patents totally through the law and/or render them useless through public consensus.

Why mark more?

[xiando]

All the software I use is clearly marked (with the GNU GPL..) in the documentation, readme-files, about-boxes and so on. I would hate to have a truckload of popups telling me about software patents distracting me from using the software for productive things. I do not see how such marking would be anything but majorly annoying for commercial software also. I could accept more patent markings it it was limited to the source code, though, a comment in the source saying "here we use patent foo" would be acceptable.

Re:Why mark more?

[Anonymous Coward]

ALL software you use is GPL? What browser?
Mozilla/Firefox are MPL. http://www.mozilla.org/foundation/licensing.html
So if you use them, not all is GPL.
Likewise, many other "free/open" softwares are not under the GPL. I do not think you are trying to be RMS and promote the GPL'ed projects exclusively, but you do need to recognize the variety of licenses (that I would consider most of acceptable) that apply to the software on practically any (GNU/)Linux system.

Re:Why mark more?

[Anonymous Coward]

"here we use patent foo"

Wow. I just had an image of Keanu Reeves sitting up from that VR chair...

"I know Patent Foo."

I disagree (sorta)

[binaryDigit]

From the article :

This paper starts from the proposition that software patents are, practically speaking, hidden away in the recesses of the patent office and practically impossible to find. It proceeds under the first economic principles of the patent system to argue that there can be no justification for patenting software when the public has no knowledge of the patents' scope or technical disclosure. It concludes by observing that patent law already provides a mechanism for disclosing patents to the public, the marking requirement, and proposes putting teeth into it so that holders of software patents would be required to play by the same rules as holders of other kinds of patents.

I think that the problem many have with software patents is not that they are hard to find, but rather that it is so easy to patent almost anything, regardless of how trivial/obvious and many times without regard to prior art. Marking may help you from getting tripped up by an existing patent, but if the basic premise is that the majority of software patents are evil, then marking just makes the evil easier to find.

Re:I disagree (sorta)

[c0d3h4x0r]

Actually, the real problem is the fact that if some rich company brings a lawsuit against you or your small business using a patent that never should have been granted, YOU get to go broke trying to defend yourself against it. Even if you win the case, you'll go bankrupt, which makes fighting the case pointless.

The entire civil judicial system in this country needs to be changed to loser-pays-all format so that defendants vindicated in the courtroom don't still lose in reality. Lawsuits are used way too often in this country as a form of threat or financial filibuster tactic rather than as a legitimate way of enforcing true accountability for actual wrongdoing.

Anyway, THAT's the real solution to the patent mess, and to the frivolous medical malpractice lawsuits, and to every other major civil legal issue our country is facing.

Gentoo's portage 'marking'

[Anonymous Coward]

This sounds fairly similar to Gentoo Linux's project to allow finer level attribution of source code (i.e. this block done by this person, rather than attribute the whole package to one maintainer). I guess this will only be seen on Gentoo boxen as it's the only distro where source is that important.

Interesting Enough

[Jeremiah Stoddard]

"Marking" software patents would be a start to solving the major issue of us not knowing what is patented or not, but it doesn't help those of us who aren't planning to buy the software to see those markings... Also it doesn't solve the issue of the incredible number of software patents covering nearly anything you can do in software - and considering the fact that technology changes so quickly, if a patent on software were to exist that didn't stifle innovation it would have to be of such short duration that the patent owner wouldn't benefit from it anyway -- developers would just wait out the expiration date. On the other hand, we could at least limit software patents to those things that really aren't all that obvious, but the patent office wouldn't know recognize what is innovative anyway, would they?

should read: NO solution at all

[ammoQ]

typo...

Obligatory....

[Weaselmancer]

"This paper starts from the proposition that software patents are, practically speaking, hidden away in the recesses of the patent office and practically impossible to find.

I don't see the problem. They're clearly marked in the basement, right by the sign that says "Beware of the Leopard."

Re:Obligatory....

[suitepotato]

They used to be. The Vogons from Redmond have taken care of that.

Re:Obligatory....

[RealProgrammer]

But you found them, right?

Jus to clear the "marking" FUD the article spreads

[Anonymous Coward]

There is no requirement to mark any patents of any kind. It only entitles you to claim prior damages, and the rules are uniform across all patent types.

The article by this law student incorrectly portrays the rules, as if software has some special set of laws.

This is no different from biotech patents, or chemical patents. They mean nothing to a non-chemist or biologist.

This whole article is a garden path "tour de FUD".

Acrobat

[Anonymous Coward]

It already takes half an hour for Acrobat to display its list of patents when it loads.

Only one thing will solve the patent dilema...

[stubear]

...and it's not killing off patents either, software or otherwise. Patent holders should be required to demonstrate their patent, especially if it's software, AND the patent holder must utilize the patent in one or more of their software applications or services built on software applications. Amazon is welcome to patent the one-click web shopping cart but they must utilize this on their website, for instance. However, companies like Eolas which exist solely to collect patents cannot enforce them because they offer no software or service which utilizes the plug-in patent. Only when you do this will marking be a useful tool to identify what is patented. if submarine patents are allowed to exist, and companies are allowed to exist solely to collect patents, marking is going to be of no use to anyone.

Re:Only one thing will solve the patent dilema...

[Bellyflop]

I don't think forcing them to use the patent is a good idea. It gets rid of research centers, places like Xerox PARC (not that they participated in this) , that exist to invent things and patent them, but don't have the production capability (or perhaps desire) to put their patent in product out on the market themselves. Instead, they rely on selling the rights to someone who can do it for them.

I think most of our issues would be solved with patent reform and a wide-scale review. The people granting the patents just need to be better at discerning what is patentable and what is not, or perhaps the court system/legislature should make it more obvious to them.

Re:Only one thing will solve the patent dilema...

[stubear]

Perhaps research centers could be granted exemptions though the rules woudl work slightly different for them. They still need to offer working proof of their software. However, since they are not required to utilize their patents in software or services they would be required to offer their patents in an undiscriminatory fashion. This is mostly left up to the research center to facilitate but by undiscriminatory I mean if they offer the patent to small businesses at x value, they must offer it to all small businesses at this value and cannot negotiate for lower fees. They cannot offer the license for an astronomically high fee either as this woudl discriminate against its use, regardless of business size. This is just a first pass, rough idea, please do not read too much into it and try to pick apart the details.

Re:Only one thing will solve the patent dilema...

[ComputerSlicer23]

I'm thinking the parent has it slightly wrong, and your interpretting it even more wrong...

When you say "Xerox PARC" as an example of an R&D place. Uhh, they built a machine with a mouse. They built an Ethernet card. They had working networking. They are an example of everything that is right about R&D. They did good stuff. It's really too bad Xerox didn't think outside of the realm of copiers. They pretty much owned the computer market 5-10 years before it existed.

I think the parent to your post had it conceptually wrong in terms of "product". I think he should modify that to be "once they have a working proof of concept", they should be allowed to patent it to protect themselves while they turn the concept into a product (I think this is the one legitimate use of patents, to protect smaller companies from larger ones while they are turning their concept into a product).

The problem with software patents are that some of them are just stupid. Anything that is "I'm automating something done by hand with a computer", shouldn't be patentable. It is no longer "novel" to automate any kind of process thru software. So everyone who patents essentially a business model thru software (my software does X, and I re-sell X as a service so I'm given a government granted monopoly on the concept of automating service X). I know there were a couple of guys who did this for automating importing and exporting. It automatically filled in some gov't forms. Got a patent, essentially tried to run every one of his competitors out of business because they used computers for some form of automation.

The other problem with software patents, is that 17 years (or 20 years from application date), is just assinely long in terms of computers. Just think if someone had patented the "mouse" when the Mac came out. That would mean you'd have had bought their mouse up until Jan of 2001 (using the 17 years from application rule).

Conceptually no one will get to implement "one click" purchasing until what, 2017 (I think they applied for the patent in 1997)? Geez, that sounds like a fair amount of time. Lets see, how much has the computing world advanced since 1997? How much since 1987?

Just think if HTML, or a Web Browser were patented so that we would have to nicely ask permission to use such concepts? It'd badly stifle innovation. If they we're talking about letting you have a patent that could protect you for up 20 years, but you only got a gov't granted monopoly once you've productized it for say 2-4 years. I'd say that's a bit more sane the then current system. It could probably still be "gamed" to gain an unfair advantage, but it sure would be nice to see fast moving markets be relatively patent free.

Kirby

Re:Only one thing will solve the patent dilema...

[lgw]

are an example of everything that is right about R&D.

I'd say Xerox Parc was the textbook example of how *not* to do R&D! Technical excellence with 0 market followthrough. If the same greta minds had been working at companies with a clue, we might have had those same technologies in the market a decade earlier.

This is just one more reason why 17 years is too long for software/process patents. Imaging if Xerox had patented everything invented at Parc, then sat on those patents. Ugggh.

Re:Only one thing will solve the patent dilema...

[ComputerSlicer23]

That was a problem with management at the company, not anything wrong with the Research people themselves. Several of the research people (See Bob Metcalf? The guy who founded 3Com and invented Ethernet), left the company precisely because they knew the management of the company had no clue what to do with the new stuff.

Xerox couldn't see past the end of their domination in copiers. My Dad worked for Xerox (not for PARC). It was just a culture thing there. If it wasn't a copier they just didn't have much interest in diversifing into that area. While they made computers and used them, they didn't do much to push them as a product. I used to use WordStar on their computers as a kid.

Kirby

Re:Only one thing will solve the patent dilema...

[Bellyflop]

I don't think that there's anything wrong with a software patent or a business model patent. The patent office just needs better guidelines about what ought to be a patentable idea and what shouldn't be. I agree, obvious things like automating a hand-done task with a computer shouldn't be patentable ideas. That's just silly. But that's the problem is the patent office - they can't tell silly from innovative.

As far as the length of patents, I don't see any reason why software should be any different than anything else. I don't think that the speed at which a particular industry evolves should affect the patent length - after all, if the industry truely evolved so quickly, you would think that most patents wouldn't be useful for long. I'd like to avoid the discussion of the one-click patent however since I think it's silly and a bit obvious, not innovative and probably should never have been granted in the first place.

Some business method patents make some sense. For example, if I find a novel/better way of finding approximate solutions in polynomial time to NP complete problems, I ought to be able to protect it so that my ideas aren't stolen every time I demo the piece of software.

I think the HTML/web browser example is a good one - it's a good example of market forces at work. It doesn't pay to patent that sort of thing as it prevents widespread adoption.

Re:Only one thing will solve the patent dilema...

[syousef]

Great, lets encourage a system where anyone who can demonstrate a technology can lock out the rest of the world from using it for a ridiculous amount of time.

Yeah, that'll make society a better place.

How about limiting patents and copyright to the right to derive profit from the use of an idea or work instead of the right to also restrict its use? And how about being more creative about how we make sure that this is implemented in a way where the producer doesn't pay so many IP rights holders that profit is impossible.

Re:Only one thing will solve the patent dilema...

[uncqual]

BTW - a good book about the Xerox screw up is

• "Fumbling the Future: How Xerox Invented, Then Ignored, the First Personal Computer"

(http://www.amazon.com/exec/obidos/tg/detail/-/158 3482660/002-1888855-0756069?v=glance)

Although I only worked at Xerox at the tail end of the disaster (I had an Alto on my desk, but that was only because no one else still wanted them!), the claims in this book seem consistent with what I heard on the internal grapevine when I was there.

Re:Only one thing will solve the patent dilema...

[ComputerSlicer23]

The same reasons why the FCC shouldn't regulate an emerging telecom industry (like VoIP), is relatively similar to why patents shouldn't hold up emerging markets.

Personally, I think patents should be shorter period. However, I think for software that's doubly true. The role of patents and copyright are to "to promote the Progress of Science and the useful Arts" (quoted from the US Constitution). I'm fairly confident that more patents are currently stifling innovation then promoting it in the area of software. Right now, there's literally no program you can write that doesn't infringe on some sort of patent. You can't write an Operating system. You can't write a compiler. You can't write a word processor. You can't write a mapping application. You can't write a spreadsheet. You probably can't write a GUI application period. I'll be slashcode infringes on patents. The entire field is covered with patents. A lot of them are unenforced, and a lot of the patents are probably bogus. However, it does mean that big patent holders can come use that leverage to execute a cashectomy, or force you to license your patent to them for terms favorable to them. It's a lot easier to write something using techniques that are well known from 4-5 years ago, instead of using techniques well known 20 years ago.

I mean if you really want to get to the meat of the problem. There should be finanical incentive for the patent offices to reject a patent. Second, the patent office shouldn't be a profit center for the gov't. (Right now the patent office is, and has been for a while. Congress cut off some of their funding, and they are now generating more revenue in fees then cost to operate). Finally, the Patent office should start paying people assine amounts of money. Being a patent clerk should be the single most competitive job in America. Simply because the patent office is staffed by people who couldn't get jobs in industry (or they really wanted to work for the patent office). The patent office doesn't get the best and the brightest in a lot of fields. They could if they paid well, and gave the job some prestige.

Finally, patents should be forced to be written as originally intended. They should clearly explain how to accomplish something. If I hand a patent to an expert in the field, and he can't tell you exactly what it does in a reading or two, it should be rejected out of hand as obscure. You get a gov't granted monopoly for spelling out how you are doing something. The concept that IBM got a patent for flushing a toilet is assine. All of it came down to either overworked and non-expertise in the patent office, or the clever language used to hide what was really being described.

I'm not sure how I feel about polynomial approximation to NP. I'd have to see the whole of it and know the details. I'm fairly confident that it shouldn't be patented. It might be patented as applied to a given scope (lets say for optimizing plane routing). However, it doesn't mean anyone who uses a similar technique applied to other industries should be subject to your patent. Now because you figured it out, the all of the US industries that could use that are beholden to you. That's incredibly stifiling. It means we'll have to wait 20 years for you to give it up, or for you to license it. Depending on exactly the terms you use to license it, you could do industry exclusive licensing. Which isn't terribly capitalistic, and it really isn't doing much to advance science or the useful arts for the next 20 years.

Kirby

Re:Only one thing will solve the patent dilema...

[TERdON]

Just think if someone had patented the "mouse" when the Mac came out.

Yep, you're lucky Håkan Lans never patented the computer pointing device aka "mouse" he constructed (ie: XEROX Parc may have attached it to a computer, but not invented it). Otherwise it could have gone as with color screens for PC:s. Huge license fees. Oh, wait. Most companies don't pay them, and when they were taken to court, judgement was against Håkan Lans!)...

You heard right, most PC vendors don't pay their license fees. This means Håkan Lans has been losing around 1 billion SEK (about 1e8/$1.5e8!) Read more here, here, here and here (sorry, some links only in Swedish).

I guess if it's that hard for small companies to get licenses fees paid for hardware patents, I don't want any software patents. Hope the EU parliament keeps them off of Sweden in the future too (swedish law didn't allow software patents before, if I remember correctly).

Re:Only one thing will solve the patent dilema...

[Alsee]

obvious things like automating a hand-done task with a computer shouldn't be patentable ideas. That's just silly.

Software is nothing but a calculation. Not only can ALL software be run by hand, but any software can be run (slowly) in pure thought.

if I find a novel/better way of finding approximate solutions in polynomial time to NP complete problems, I ought to be able to protect it

So you want to be able to patent math. And if I use your new patent and I carry it out inside my head and get that solution, have I violated your patent? Were those thoughts prohibited by law? Thought crime?

I guess Newton would have gotten a patent on calculus if he developed it today? Or even a patent on multiplication if it were new? They are nothing but software algorithms.

The patent office just needs better guidelines about what ought to be a patentable idea and what shouldn't be.

The patent office had perfectly good guidelines on that. The patent office and the courts used to consistantly reject any attempt to patent software on the grounds that it was not an invention. The Supreme Court explictly said that all (software) algorithms were to be considered a familiar part of prior art for patent purposes.

Some specific 100 digit number may be never have been written before (novel), that number may certainly be nonobvious, that number may even been quite useful... however you cannot invent a number. For patent purposes a number canot be novel or non-obvious. For patent purposes you cannot invent math. An equation or algorithm can be neither new nor novel. Software is nothing but a form of math equation or algorithm. Sofware cannot do anything other than calculations. A calculation is not an invention.

The problem is that a lower court reversed the patent office rules and ordered them to issue software patents, and the court did so in violation of the above cited Supreme Court ruling. The problem is that the Supreme Court has not touched a patent case is an obscenely long time and has never struck down that lower court ruling ordering the patent office to issue software patents.

The patent system itself functions reasonably well. Virtually every single 'problem' with the patent office is solely a problem from the change to extened patents to software. Other countries aren't having these problems and we never had these problems before. A mid level US judge just INVENTED software patents in violation of standing Supreme Court law and reversing established US patent office regulation and contrary to the patent laws of every other country on earth. And ever since then we've been armtwisting other countries to reverse their own laws to match our new system.

-

Re:Only one thing will solve the patent dilema...

[Bellyflop]

Software is nothing but a calculation. Not only can ALL software be run by hand, but any software can be run (slowly) in pure thought.

Agreed - but I'm not talking about the software here - I'm talking about the process. Some processes are patentable and probably ought to be.

So you want to be able to patent math. And if I use your new patent and I carry it out inside my head and get that solution, have I violated your patent? Were those thoughts prohibited by law? Thought crime?

I'm not sure where you're getting the thought crime part, but yes, I want to patent some parts of math. It's possible right now in the patenting of chemical processes. I think it's reasonable - if I spend all of my R&D dollars finding an inventive new pathway, I'd like to be able to make some money off of that pathway. If people can't make money off of it, then people won't research it outside of the university setting.

I guess Newton would have gotten a patent on calculus if he developed it today? Or even a patent on multiplication if it were new? They are nothing but software algorithms.

Can you explain this? How is calculus a software algorithm? Is it Turing complete? Can you prove it?

For patent purposes you cannot invent math. An equation or algorithm can be neither new nor novel. Software is nothing but a form of math equation or algorithm. Sofware cannot do anything other than calculations. A calculation is not an invention.

This is not strictly true if you think of physics as an extension of math and chemistry as an extension of physics. Chemistry is very much patentable. Business process patents really reach far into those realms. The laws of science aren't patentable, but the methods of using them can be - drug patents for instance. Software isn't a law of mathematics but it's a method of using it.

Re:Only one thing will solve the patent dilema...

[Alsee]

Some processes are patentable and probably ought to be.

New and nonobvious physical processes. Not mental steps and logic and math.

I want to patent some parts of math. It's possible right now in the patenting of chemical processes.

No, that's not a "patent on some parts of math". You get a patent on discovering and teaching a physical process and harnessing the forces of nature to acheive a physical result. Refining ore or manufacturing a drug or whatever.

Any math you come up with while you're at it or use while you're at it contributes nothing towards qualifing for novelty or nonobviousness.

I'm not sure where you're getting the thought crime part

You cannot violate a patent on a chemical process and actually refine ore into metal through mental steps. You cannot violate such a patent just by thinking through the steps of the invention. A patent on refining ore or manufacturing a drug does not claim thinking certain thoughts violates patent law.

A patent on LZW compression is a software patent. You can carry out the 'invention' mentally. I am saying it is absurd to sugest that someone can break the law while suitting motionless and just thinking and actually preforming the patented compression.

And if you try to claim carrying out the patented process/calculation mentally is not considered infringment, only carrying it out on a computer is infringment, then you are claiming that an otherwise nonpatentable noninvention magically becomes a patentable invention when you add the blindingly obvious and normal step of using a computer simply to speed up that calculation.

It's absurd to say that someone thinking the patented "process" can be commiting thought crime violating patent law, and it is equally rediculous to claim that nonpatentable cacluation becomes an invention with the obvious use of a computer instead.

How is calculus a software algorithm? Is it Turing complete?

It doesn't matter if it's turing complete. Calculus has a whole host of new and nonobvious mathematical algorithms for calculating all sorts of useful results. Just like the LZW algorithm is useful for calculating compressed results, and the RSA algorithms is useful for calculating encrypted results and calculating decrypted results, and just as the MP3 algorithm is useful for calculating lossy-compressed sound files.

How about the (patentable?) algorithm for multiplication? You have a 10-by-10 lookup table for single digit multiplies, then in a certain order you step through the digits of each of the two numbers you're multiplying and you do adds and carries to find the product?

That multiplication algorithm is useful in RSA encryption and in MP3 compression. If those software patents are valid then a multiplication patent for those purposes would be valid as well if multiplication were 'invented' today.

-

Re:Only one thing will solve the patent dilema...

[Bellyflop]

New and nonobvious physical processes. Not mental steps and logic and math.
Can you provide some examples? Mental steps are indeed patentable - chemical processes start as mental steps and equations on paper. And that is patentable.
A patent on LZW compression is a software patent. You can carry out the 'invention' mentally. I am saying it is absurd to sugest that someone can break the law while suitting motionless and just thinking and actually preforming the patented compression.
Ok, so we agree that it's absurd. I didn't say it wasn't - but you seemed to imply that I did, so I wasn't sure where you got it from. That's what I was asking.
It doesn't matter if it's turing complete. Calculus has a whole host of new and nonobvious mathematical algorithms for calculating all sorts of useful results.
Yes, calculus is really useful for calculations. It's not a software program though. It's absurd to think of it that way. All math is not software. Software can be seen as math, just as physics and chemistry are math. They are turing complete, provable, and patentable.

Re:Only one thing will solve the patent dilema...

[Alsee]

Mental steps are indeed patentable - chemical processes start as mental steps and equations on paper.

Sure it's patentable, but refining ore into metal or manufacturing a drug is *not* a mental process. Not matter how much you *think* about it you can never refine a single ounce of ore into metal nor produce a single molecule of drug. They are physical processes. (Potentially) patentable physical processes.

A patent on LZW compression is a software patent...
Ok, so we agree that it's absurd. I didn't say it wasn't - but you seemed to imply that I did, so I wasn't sure where you got it from.

You said " I don't think that there's anything wrong with a software patent".

I cited a few software patents such as LZW and you now say you agree that is absurd. So now I'm a bit puzzled. Have you have reverse positions? Or do you think there are some sort of 'different kinds' of software patents and that LWZ shouldn't be patentable but some other unknown sort of software patent should be valid?

Yes, calculus is really useful for calculations. It's not a software program though.

Isn't it? Calculous nothing but a series of logic or mental steps for turning one peice of information into another peice of information. Just like all math, just like all software.

physics and chemistry are math

Writing about or thinking about physics and chemistry may certainly make use of math, and you cannot invent writing about or thinking about them. Writing and thinking about them cannot be patented. You can only invent and patent new non-obvious pysical processes for acheiving a physical result. You can only infringe a patent if you actually engage in that new and non-obvious physical process and actually produce that physical result.

Patenting software means patenting a series of mental steps. People often overlook that because we usually use computers to simply carry out those calculations more rapidly. However as a programmer I can tell you that running software mentally is a normal and routine part of writing and debugging software. Any software can (slowly) be run mentally. You can actually carry it out and actually produce the result.

You seem to agree that a person thinking is absurd to be an invention, not patentable. That non-patentable non-invention does not magically become a patentable invention when you add the blatantly obvious step of using a computer simply to calculate the information faster.

-

Re:Only one thing will solve the patent dilema...

[Bellyflop]

Sure it's patentable, but refining ore into metal or manufacturing a drug is *not* a mental process. Not matter how much you *think* about it you can never refine a single ounce of ore into metal nor produce a single molecule of drug. They are physical processes. (Potentially) patentable physical processes.
That's definitely true. But, just the same, no matter how much you think about it, you're not moving a single electron through a switch, or printer head or anything of that sort either - it's the software that tells the computer how to do that. Like it's the formula and process that tells the chemical factory how to produce your drug.

Isn't it? Calculous nothing but a series of logic or mental steps for turning one peice of information into another peice of information. Just like all math, just like all software.No, it isn't. It exists entirely outside of software. If you're going to generalize all things that a series of logical or mental steps, then you're arguing for no patents because one could argue that about any creative process.

You can only invent and patent new non-obvious pysical processes for acheiving a physical result.
No that's not true. You can patent a lot more than things that produce physical results. RSA was patented for instance. I guess you could argue that it moves physical electrons, but the pattern of that movement isn't what's being patented. Hell, you can patent a "business process". You can hold a patent on a particular way of solving a standard problem such as your management consulting methodology. It might seem absurd, but consulting firms do hold patents on their methodology!

You seem to agree that a person thinking is absurd to be an invention, not patentable. That non-patentable non-invention does not magically become a patentable invention when you add the blatantly obvious step of using a computer simply to calculate the information faster.
I disagree. It does. Just like using the obviouschemical plant to process your drug doesn't prevent your drug from being patentable.
I also disagree that physics is anything more than mathematics applied to describe physical observations. And similarly, chemistry is nothing more than applied physics. But that's a matter of opinion I guess.

Re:Only one thing will solve the patent dilema...

[Alsee]

You can certainly attach a computer to an invention. You can attach a computer to a speaker, and you could certainly invent and patent that speaker (assuming there is something novel and nonobvious), but you cannot invent and patent the calculations for compressing or expanding an MP3 sound file.

If you're going to generalize all things that a series of logical or mental steps, then you're arguing for no patents because one could argue that about any creative process.

You cannot patent a creative process. You can patent objects, and as for process patents the Supreme Court says:
A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.
Transformation and reduction of an article ``to a different state or thing'' is the clue to the patentability of a process claim

Process patents are for novel and nonobvious physical processes to transform a physical articles. Math and logic and software are not patentable processes.

If you discover a novel and nonobvious way to refine ore into metal then that is a patentable process. You do not have a patent on the idea of it, you have a patent on preforming the physical act.

You can patent a lot more than things that produce physical results. RSA was patented for instance.

And I'm saying that the RSA patent was issued invalidly in violation of several Supreme Court rulings.

It violates the Supreme Court ruling in Gottschalk v. Benson that says the key to a process patent is transfroming materials (as I quoted above), it violates the ruling in Parker v. Flook that all algorithms are to be treated as 'familiar prior art', it violated Diamond v. Deirh that insignifigant post-solution activity (referring to industrial physical activity) will not transform an unpatentable principle into a patentable process, that to hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection.

I am sating that lower district court - most particularly the district court in the State Street Bank decision, violated Supreme Court law on the subject when they decided to reverse well established US patent law that software was not an invention and could not be patented. Prior to the State Street Bank ruling the US patent offise consistanly and properly rejected any attempt to patent software. According to patent law all across the globe software was not an invention and could not be patented.

The Judge in State Street Bank reversed US patent law and did so contrary to all global patent law, and violated Supreme Court law in the process. In fact the US patent office itself was the defendant in the case and was arguing that software was not an invention. The judge in State Street Bank ordered the patent office to issue software patents.

And that ruling is still standing because the Supreme Court has not touched a patent case in over 20 years. Unfortuantly they are extremely busy and can only take a limited number of cases per year. They deal with civil rights cases and unconstitutional laws, and they just haven't been inclined to bump one of those cases off the docket to make time for a petty corporate patent dispute. It's long overdue that they did take such a case because the district courts have run amuck. The Supreme Court just needs to take one case and affirm their prior rulings and directly smack down the State Street Bank decsion and *poof*, all existing software patents vanish in a puff of smoke. Actual inventions (physical objects and physical processes) would remain perfectly patentable just as they have always been.

-

Re:Only one thing will solve the patent dilema...

[Bellyflop]

You can get a patent on something other than a physical thing. Drug companies do so constantly. The patent processes as well as molecules. I'm not going to argue with you whether or not patents such as the RSA patent are invalid - that's for the courts to decide and until either the Supreme Court gives such a ruling or Congress enacts a law, those patents do hold up. And people pay damages.

Re:Only one thing will solve the patent dilema...

[Alsee]

You can get a patent on something other than a physical thing.

Is that supposed to be some sort of 'correction'?

I have said that or referred to that fact at least a half dozen times.

Drug companies do so constantly. The patent processes as well as molecules.

Is that supposed to be some sort of 'correction'?

I have said that or referred to that several times as well.

Software is obviously not an object invention, and I spent the entire thread explaining why you can't get a process patent on software. Why it does not pass Supreme Court rulings on the legal qualifications for an invention.

until either the Supreme Court gives such a ruling or Congress enacts a law, those patents do hold up

Yes, I have been explaining how the lower courts have been violating the law and improperly upholding invalid patents. I explained why the lower court State Street Bank decision was wrong, and the lower courts have been perpetuating that error.

If you don't care about any discussion over whether software patents are actually legal or not, if you don't care about any reasoning or arguments on the subject, well OK... but then I don't know why you are discussing the issue at all. I don't know why I'm wasting time explaining the legalities and citing Supreme Court cases.

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Re:Only one thing will solve the patent dilema...

[Bellyflop]

I think the problem is that we are using different definitions of the phrase "can get". By "can get", I mean, "what will the patent office issue today." I think what you mean by "can get", you're talking about a particular interpretation of the law.

Re:Only one thing will solve the patent dilema...

[Alsee]

We agree that processes are patentable.
We agree that the US patent office is currently issuing software patents and that lower courts are currently upholding them.

To be exact and clear, I was explaining that by Supreme Court law software is not a "process". That SWpats are being issued and upheld invalidly. That software may be used during an actual physical process, and that that combination is (validly)patentable if and only if there is something inventive outside of the software.

-

Adobe Patents listed in about box.

[ugmoe]

Copyright 1984-2004 Adobe Systems Incorporated and its licensors. All rights reserved.

Protected by U.S. Patents 4,667,247; 4,837,613; 5,050,103; 5,185,818; 5,200,740; 5,233,336; 5,237,313; 5,255,357; 5,546,528; 5,625,711; 5,634,064; 5,729,637; 5,737,599; 5,754,873; 5,781,785; 5,819,301; 5,832,530; 5,832,531; 5,835,634; 5,860,074; 5,929,866; 5,930,813; 5,943,063; 5,995,086; 5,999,649; 6,028,583; 6,049,339; 6,073,148; 6,185,684; 6,205,549; 6,275,587; 6,289,364; 6,324,555; 6,385,350; 6,408,092; 6,411,730; 6,415,278; 6,421,460; 6,466,210; 6,507,848; 6,515,675; 6,563,502; 6,604,105 ; 6,639,593; 6,678,410; 6,701,023; 6,711,557; 6,720,977; 6,748,111 ; 6,754,382; 6,771,816; U.S. Patent Design 337,604; 338,907; 371,799; 454,582; Patents Pending.

Re:Adobe Patents listed in about box.

[optimus2861]

By contrast, my Dell Latitude laptop computer, a tangible, physical device, the outgrowth of many years of research & developement in microchip and printed-circuit technologies, churned out by some mass-producing factory has, four, count 'em, four patent numbers listed on the bottom. Sure, there's probably a bunch more inside, but when a piece of software that lets you read a document has 30+ patent numbers and the computer that runs it has 4, something's a little bit off...

Re:Adobe Patents listed in about box.

[null etc.]

They need to take this one step further:

"You've just used Adobe's U.S. Patent #5,185,818! Please remember, if you see this feature in another software package and are the first to report it to Adobe, you will receive a free copy of Photoshop CS 10!"

and

"Have a good day! You've used 278 of our patents 9,386 times today. Thank you for helping us bankroll our Intellectual Property lawyers. Our ability to innovate is directly dependant upon our ability to patent and sue. Also, if you're the owner of a Nikon DX5000 camera, please remember to call Nikon USA and demand they open up their proprietary RAW format!"

and finally

"Thank you for registering your Adobe product. Remember, only communists don't like patents!"

Re:Adobe Patents listed in about box.

[Anonymous Coward]

"Thank you for registering your Adobe product. Remember, only communists don't like patents!"

You mean you're a TERRORIST if you don't like patents. Terrorists are the bogeymen under the bed now.

MS Office

[bobthemuse]

Does this mean that MS Office will require a 17th CD to hold all the info?

Is this really a solution?

[ravenspear]

It seems to me that this really doesn't solve the software patent problem at all. The major issue of patents being granted for trivial/previously implemented ideas will continue. "Marking" seems to be just an easier way to enforce software patents.

In fact, until the flawed underlying process of patenting software is fixed in a more permanent way this could actually make things worse. Right now it is very easy for programmers to simply ignore patents that they find ridiculous on the basis that the owner would not challenge them in court and become thereby open themsleves to dispute about the validity of the patent itself.

Re:Jus to clear the "marking" FUD the article spre

[Anonymous Coward]

Agreed. The author has several errors concerning the use of marking.

Feeble, absurd compromise that makes no sense

[Concern]

There is only one way to reform Software Patents.

That is to abolish them.

Software patents have never worked, and can never work. There is no way they can be made to work.

Marks do nothing to solve the absurd problem of scale. No one can ever assimilate the patent database, or even keep up with new additions, no matter what reforms were enacted. Anyone who tells you their code is "legal" with respect to patents is a bold-faced liar. Every line of code is a ticking patent timebomb.

The very term is just a code word for "Barratry."

They are a legal anomaly and a practical absurdity. They "function" only in that they are almost entirely ignored by those they are intended to govern. In short, they are a very expensive, very destructive farce.

In theory they were meant to be a tool for rich people to shake down poor people, but they even backfire at that, since small "IP" companies can shake down giants with impugnity without being counterattacked, as long as they have no products of their own.

Re:Feeble, absurd compromise that makes no sense

[Anonymous Coward]

They are a legal anomaly and a practical absurdity. They "function" only in that they are almost entirely ignored by those they are intended to govern. In short, they are a very expensive, very destructive farce. In theory they were meant to be a tool for rich people to shake down poor people

Wow, sounds an awful lot like the laws comprising the War On Drugs(TM).

This does not solve the major problem

[PurpleXanathar]

This does not solve the major problem.
The major one is not seeing a good feature in a product and violate a patent in trying to reproduce it. The big problem is trying to implement some [often trivial] feature and accidentally break a patent in a software which we don't even know exists!

For example if I had an ecommerce site, I would probably have implemented a one-click buy option even if I haven't seen amazon before.

Re:This does not solve the major problem

[ConceptJunkie]

"Marking" patents, hmmm??

And if we put a sign on every car that says,
"This is a car.", I'm sure car accidents will go way down too.

You're not solving a problem, you're just hastening the inevitable collapse of the software industry that software patents, as they exist today will cause.

Re:This does not solve the major problem

[benjamindees]

I would probably have implemented a one-click buy option even if I haven't seen amazon before.

Supposedly, this makes no difference when patents are involved, which makes the distinction between copyright and patent that much more absurd. I thought you couldn't patent vague general ideas, only implementations of those ideas?

How many times have you watched a Fark photoshop contest in which people submit the same concept at nearly the same time? Who is it that gets to apologize and retract? The person who got theirs posted last, and probably spent the most time working on. What does this system encourage? Pushing half-completed projects out the door. I don't see how it's even economically beneficial. Look at what the software industry has become: a collection of half-completed projects with people's names written on them, and that they'll happily sue you for if you try to turn them into useful products.

Imagine, is a book on butterflies a work of art subject to copyright or a "method and implementation of transmitting knowledge of butterflies" capable of being patented?

Is an architectural design for a McDonalds a work of art or a "customer-cheeseburger interface?"

Did Amazon "discover" (as required by the constitution) the one-click buying interface? Or did they create it?

It's even less clear when it comes to software. Hell, for the longest time, no one even thought software could be patented. Now, though, who the hell knows.

Re:This does not solve the major problem

[planetoid]

I don't know why but the phrase "customer-cheeseburger interface" had me bawling with laughter.

good, except for online

[192939495969798999]

Imagine wading through all the "PATENT 2,234,654" statements on a page like ibm.com, msn.com or amazon.com, where the company owns a patent on practically everything you're looking at... doesn't sound practical at all. Maybe it would be faster to have a link with a list of patented items, or something like that.

Re:good, except for online

[Anonymous Coward]

Maybe it would be faster to have a link with a list of patented items, or something like that. /patents that idea

Sure... I can just see it now...

[scum-e-bag]

Sure... I can just see it now...

Looking at my menubar and instead of seeing

File/Edit/View/Go/Bookmarks/Tools/Help

I see

Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only File/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Edit/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only View/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Go/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Bookmarks/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Tools/Apparatus Claims of US Patents Nos. 4,454,344,344 3,786,655,445 & 8,234,234,371,754 for limited uses only Help

Lets really bloat our systems...

Re:Sure... I can just see it now...

[Anonymous Coward]

Well that would certainly drive more people over to using free products that don't use patented junk... hence good for linux!

Re:I Speak American...

[Anonymous Coward]

Don't worry its not for hobos

Pointless

[Anonymous Coward]

I found the article pointless. The patent laws already require all products covered by a patent to be marked. This is nothing new, not even in the context of software patents. Any smart defendant in a software patent suit would know this and exploit the faults of the patentee. There are tons of cases out there describing the requirements for marking, even when it comes to something not easily marked - like something tiny, like a screw. Software marking just requires a short leap in logic regarding how to mark, not whether to mark.

Here is a real patent marking issue for debate - the Federal Circuit decided years ago that the failure to mark a product the patentee produced or licensed for production by another would bar the patent owner from collecting damages from someone that BLATANTLY copied the patent.

Don't you think if someone copies something that it knows is covered by a patent they should be held accountable? They obviously had notice of the patent, so notice is not an issue.

100-year patent issue

[mmeister]

There are many, many problems associated with software patents.

I never see much mention of the fact that a software patent extends for 17 years makes it equivalent to 100 years in another industry. I think this will become more of a problem as other industries accelerate in production.

Think about the state of computers 17 years ago (1988), who's patents are only now expiring. We're talking pre-Internet.

In general, patents are supposed to encourage innovation. But that was never needed in the software industry. Patents are now used as corporate weapons and nothing more.

The big guys have thousands of patents in their arsenal and you're likely infringing on one of them unless you can PROVE you're not. the result -- the little guys (the innovators) are the losers and ultimately, the entire industry becomes the loser as innovation slows down.

Problems with software patents

[porkface]

• Generic terms are allowed and no specific technical mechanism is ever described because the patent office doesn't understand computer systems yet. These kind of patents should be invalidated as quickly as possible.
• It's currently impossible to determine whether a new idea is patented or not. Marking would do a lot to help this. So would registering products under the patent number for easy cross referencing.

I came up with a neat idea the other day for a bit of software, and then I thought how on Earth can I charge for this if someone could just as easily copy my idea in 2 weeks? My idea is innovative, I've never seen it before, and I would only be patenting the use of a particular trick for a very specific purpose and market. I wouldn't be blocking use of code or competition in my market space, buBut why bother building it if I'm not going to get paid?

I think software patents should only last for a year or two, but getting rid of them entirely causes as many problems as it solves.

Re:Problems with software patents

[Anonymous Coward]

I respectfully submit that if your idea could be easily copied in 2 weeks, or you're worried about not getting paid, then perhaps it shouldnt be awarded a patent.

Innovative algorithms do take effort to create, but at least historically copyright has been a quite effective protection, since reverse engineering someone's shipped binaries requires enough effort that the creator gets a fair jumpstart on the market.

Re:Problems with software patents

[Anonymous Coward]

But why bother building it if I'm not going to get paid?
So, that's your problem.
It seems to me that patents and "intellectual property" are the result of semantic confusion. When a patent is granted, the holder is entitled to say "I own this", regardless of everyone else in the Universe. Does this make any sense to you?

Re:Problems with software patents

[Coral Snake USA]

Actually I think that the answer here would lie in special CONPUTER AND SOFTWARE copyright and patent terms that reflect the rapid obsolecence in the industry. The conputer and software patent term would be a max of two years. The computer and software copyright term would be five years or the market life of the product whichever is less with products being designated at the VERSION level. I believe that this will allow a reasonable amount of time for computer related inventors and developers to profit from their products but would also expand the public domain in the computer area and prevent mega monopolies Like Micro$oft from forming due to continuing to hold patents and copyrights on even their obsolete software. On what may be considered the "bad side" for some people a lot of software will be released from the GPL and other open source licenses by this. However it will actually solve the core problem that the GPL and other open source licenses were designed to address, the supression of the public domain by Monopoly corporate interests.

Re:Problems with software patents

[bit01]

But why bother building it if I'm not going to get paid?

Why do you think no patent equals no pay? That's a piece of illogic that the patent lawyers like to push without evidence.

Say I have the idea of opening a new hardware store in a town previously without a hardware store. Somebody else sees I'm making money, thinks it's a good idea and so opens a competing hardware store.

I had the idea first and the store required a big investment, do you think they should be legally blocked from competing with me because I thought of the idea first? I don't.

---

Are you a creator or a consumer?

Quick

[RealityMogul]

Somebody patent a process for identifying the patents used within a particular piece of software.

Don't laugh - you know MS saw this article and has somebody working on a proprietary format for storing this information.

patent != copyright != license

[javaxman]

though the GPL is a license which invokes copyright, it's not a patent...

Comments in the source about patent use just don't work, especially for products where you don't have the source.

I read this as being along the lines of "products should document clearly ( in manuals, marketing material, etc ) what patents they are protected by", just like say, your car, TV, VCR, DVD player, even lawn mower : pick up a manual to any of them, you'll see patents ( both pending and otherwise ) listed fairly prominently. It wouldn't need to be obtrusive, just something in the "about" box or in the user manual or license agreement would do.

But it shouldn't be hard to find. Right now, I wouldn't have any idea where to look for patents used in Microsoft Office, for example. If I were writing a text editor, I'd like to know what to avoid doing. It's a crock that I should have to think like that, but if I have to, I should at least know where to look, rather than having to spend a lot of effort doing some sort of search.

Re:patent != copyright != license

[Anonymous Coward]

It may work something like the splash screen of Adobe products, which list the patents used in the product.

Presumably they hold patents more interesting than "floating toolbars"

Film Graduate?

[Anonymous Coward]

What's a film graduate?

USTPO

[Anonymous Coward]

How does one get a job at the USTPO?
maybe we need to have more slashdoters apply for jobs there, quietly taking over from inside.

Re:USTPO

[John Miles]

How does one get a job at the USTPO?

It's tricky, from what I've heard. You need to demonstrate basic competence at oxidative phosphorylation.

Re:USTPO

[plsuh]

How does one get a job at the USTPO?

It's tricky, from what I've heard. You need to demonstrate basic competence at oxidative phosphorylation.

No, no, no -- you have it backwards. You need to prove that you are not a user of Adenosine Triphosphate in your uppermost extremity.

--Paul

Re:USTPO

[Anonymous Coward]

now i know you dont mean competence in the knowledge of oxidative phosphorylation, so you must mean they are alive and producing energy

Help...About...

[Anonymous Coward]

The simplest place to put patents would be on both the splash screen and the help menu.

That way, a reasonable person who is looking for patents could both be alerted that there ARE patents and that there is a simple way to review the patent numbers as few people will be able to read and memorize a couple strings of patent numbers.

Without the announcement that there are patents, a person viewing a program has no clear way of determining if what they see is patented at all.

Re:Help...About...

[Keeper]

The splash screen won't work. Displayed for too short of a duration, and the odds of there being more patents in a product than can be displayed on a single screen is higher than you would think.

A *real* solution to this mess

[richardtallent]

'Marking' software patents will work about as well as 'marking' spam--without a "spam filter", the conjestion and abuse are not improved because the incentive for such abuse is still there.

The problem is that, whether by laziness, incompetance, or corruption, the USPTO has exceeded its Constitutional mandate and is extending protection to companies for "inventions" outside the litmus tests that are required by law.

We also have really decent campaign finance disclosure regulations here in the US, but does that really stop politicians from being beholden to [insert evil special interest]?

Companies claim that they are just "keeping up with the flow of traffic"--filing frivolous patents for defensive protection against other frivolous patents (Eolas, etc.).

The sad fact is that, under the current system, this *is* necessary. But, like a stampede, the *individual* defensive solution only makes things worse for *everyone* in the end.

I think I have a solution that would solve the problem, I posted it to my blog (too much detail to repeat here):

http://www.tallent.us/blog/CommentView.aspx?guid=0 6d2ed56-6e64-480d-81e7-b4e7b41d074a

More rantings on this subject (yeah, I'm a broken record):

http://www.tallent.us/blog/CommentView.aspx?guid=2 fd0f532-e606-4381-a953-a56030723d00
http://www.tallent.us/blog/CommentView.aspx?guid=b 24816d0-ffc9-46e9-a6b4-f6ae8bda9dad
http://www.tallent.us/blog/CommentView.aspx?guid=d 2cb7e55-8aa1-44bc-ad2e-d16f536f1a77
http://www.tallent.us/blog/CommentView.aspx?guid=0 0cec4db-87c1-4335-81c6-446c8612b528
http://www.tallent.us/blog/CommentView.aspx?guid=7 01f454d-3310-4df5-8b12-8d8363cdb8e7

Re:A *real* solution to this mess

[Anonymous Coward]

This is the author: The point of marking patents, under my proposal, is to keep companies from asserting them after the fact. The idea is that the costs of determining which patents apply to various software would be high enough that companies would have to abandon their worthless patents out of necessity. If you are sued under a "bogus" software patent, rather than digging for prior art in some professor's basement, you simply see if that company had used their own patent in their own product without marking. Unless the patent seemed very important at the time, they probably would have used it without marking. The indirect effect of the proposal is to nullify almost all software patents in existence, without falling into the rhetorical patent lawyer trap of "Why treat software differently?" This proposal invalidates most software patents by saying, "Yes, let's treat software the same way. Mark your patents so we know what's out there, just like all other kinds of tangible inventions have to be marked."

It's not a perfect proposal, of course, but it's a good start. We've been fighting software patents head-on for more than a decade and haven't made any progress. Arguing that yes, software patents should be treated the same, can in fact achieve most of what we want.

Your spam analogy is a little inapposite, since unmarked spam is still a nuisance, but unmarked patents under this proposal could be very easily defeated in court. That is what you want, right?

Is "patent" pronounced differently in England?

[zutroy]

Interesting movie, but I've never heard "patent" spoken like that.

Re:Is "patent" pronounced differently in England?

[IWannaBeAnAC]

I never heard 'linux' pronounced like that either. I thought it was "LIN-X", not "LY-NUKS" ?

Re:Is "patent" pronounced differently in England?

[plsander]

Never watched Wallace and Gromit's A Close Shave?

Re:Is "patent" pronounced differently in England?

[Anonymous Coward]

No, it's pronounced the same. It's in the US that they pronounce it differently.

Uh Oh - US Patent "Reform" Alert

[Anonymous Coward]

Brought to you by our favorite Senator Orrin Hatch, and his friends at the BSA.

The story is here

I had no idea...

[Bun]

...it was pronounced "pay-tent".

Hybridize to unmark

[UnapprovedThought]

An analogy with the real world:

Take the frame of a glider, the wheels of a bicycle, the engine of a car, but made of a lighter metal, the propeller from a ship and a bird's wing.

The result: the "aeroplane," a new patentable invention that the glider builders, bicyclists, automobile companies, ship builders and birds cannot charge you royalties for.

OK, so do the same with software:

Combine a piece here, a little piece there (e.g. two hashes). Suddenly nobody's patent applies to you because it looks like everyone's and no one's work at the same time.

Whatever procedure they use to "mark" the code can be used to unmark it, because it's all just modifiable information.

"Ha! There! I've written my name on the board. Now it's mine, all mine."

"Hey wait, what are you doing erasing that?"

A sufficiently hybridized program will succeed in defeating any scheme for marking it, and if they attempt to do this through almost impenetrable obfuscation then no one will want to use their hopelessly unmaintainable code anyway.

Hmmm... maybe this explains something about the apparent insecurability of some M$ code?

Section 4, Solution to Arrows Information Paradox

[NigelJohnstone]

"Kenneth Arrow's information paradox, which describes the problem faced by an inventor selling an idea. Anybody contemplating the purchase of this idea will, naturally, want to know what it is. But if the inventor reveals his idea, he no longer would have anything to sell."

He could implement it and show its advantages and sell it on its advantages.
Recall Fox softwares 'Rushmore' database technology. They showed the benefit without revealing the technique.

Of course he, the inventor, must be able to implement it, or how else could anyone else?! Also he must be able to show advantages or it has no worth.

Marking patents?

[nuggz]

I've never heard of a requirement to mark patents on the product.

I'm sure this will really mess up nanotech patents and business method patents.

I think we should chemically etch the appropriate patent numbers into the legal staff first.

Re:Marking patents?

[Anonymous Coward]

There IS NO MANDATORY REQUIREMENT. It's OPTIONAL.

What a bunch of lemmings.

Re:Marking patents?

[Anonymous Coward]

Awesome idea! USPTO says "you can have this patent Mr Inventor, but you have to prove you want it enough by getting the patent number tattooed onto your butt"

cue lots of lawyers walking around with I (heart) Harvard Law and a load of digits underneath.

Re:Marking patents?

[Anonymous Coward]

This is the author: It's called a "duty" in standard treatises like Chisum. The proposal is to strengthen the duty into a requirement for software patents, because software patents are almost unique in breaching the duty. The incentive to mark is apparently not strong enough.

I wanted to add

[NigelJohnstone]

It's in the nature of software that you can release the product without explaining how the internal algorithms work.

So there is no paradox for software, he can both show it and not reveal how the black box works inside.

2 cent opinion.

How on earth do patents work at all?

[Concern]

Have you ever written any code?

How many patents did you violate in order to write it?

How do you know?

How can ANYONE possibly EVER know?

And even if by some miracle you did know today, how will you know tomorrow, when another 1,000 patents have been granted?

You have no answer to these questions. I know that in advance, because these questions are impossible to answer.

It amazes me that anyone is still confused about this.

Software patents are a ridiculous, unworkable farce. The only reason they "work" today is that they are almost universally ignored, even (or especially) by their supposed proponents.

Re:How on earth do patents work at all?

[stubear]

One could easily ask this of many inventions. There are going to be some obvious and some not so obvious violations in both areas but this does not mean you scrap the entire idea of software patents. As for "how do you know", you do the research. Granted the USPTO, and patent offices of other countries you wish to distribute your software, should provide better search capabilities for their listings but that's all part of solving this greater problem.

Re:How on earth do patents work at all?

[Concern]

As I predicted, you were unable to answer my questions.

Instead, you basically said, "hey there may be problems with other kinds of patents too."

Patenting software is distinct from patenting other kinds of inventions, and we can get into why that is if you like. The exercise is rhetorical, however I will be happy to indulge you.

If you cannot make the system work, it frankly doesn't matter whether you should try.

You only said, "you do the research."

How do you do the research, stubear?

Do you really believe "the research" is something that could possibly be accomplished by human beings, on a human timescale? There are hundreds of thousands of these patents already. There more daily.

You cannot even devise a scheme for just keeping up with NEW patents that is within orders of magnitude of being economically feasable for ANY form of software development.

You can't wave your hands and say "search capabilities." What type of search capabilities can reliably correlate source code with patents? None are known to human-kind, nor are there likely to in our lifetimes barring some harrowing advance in the field of artificial intelligence. Such an advance, I might add, will only be possible through (yet again) our collectively ignoring and violating tens of thousands of software patents.

How on earth can this preposterous state of affairs not immediately require us to turn back towards sanity?

Re:How on earth do patents work at all?

[Anonymous Coward]

More:

What if you patent some algorithm and then a wider concept encompassing that algorithm (in the same field) had already been patented?

What if you patent something in Country A and then manufacture the product in Country B (where there are no patents) and then resell the product in Country A (you would be allowed, because you are the one holding the patent)? The product could in fact have come from any manufacturer at all (including other non-patent-holding manufacturers of Country A).

These issues are mindboggling and unsolveable.

Of course, there might be laws dealing with these possibilities.

But then, isn't the patent system just a bag of arbitrary rules? Why these rules and not others? Why any patent laws at all?

The usual "arguments" are just not convincing enough on a fundamental level, and are every day, more and more, historically disproved on a practical level.

Re:How on earth do patents work at all?

[Husgaard]

As for "how do you know", you do the research.

Really? Software patents are extremely hard to read. To properly read a software patent you have to know both software and patent law, and you also have to know the special obscure language the software patents are written in.

TFA states that the cost of an informed opinion on possible infringement on a patent costs 20-100,000 US$. And there are at least 100,000 software patents.

Let's do some really simple math. For example let us assume that you have a fine idea and it costs you 20-100 US$ to implement it in software. Before you can sell your fine small piece of software (it is extremely small as it only contains one idea), you have to do your research.

You need an informed expert opinion on 100,000 patents. This will cost you 2-10 billion US$. Now, since this is a big job for the patent law firm giving the opinion, you could get lucky and negotiate a 99 percent rebate, which drops the research price down to 20-100 million US$. Of course this research gives you no guarantee that you did not infringe on any software patents.

In this example the price of the research is a million times higher than the actual development cost.

In real life it is practically impossible to check your software for infringement. This is the reason why no software companies do any real checks for infringement. The software companies that are big enough to do it instead create a portfolio of software patents for defensive use and hope that their defensive patent portfolio will help them if they step on one of the patent land mines. (Smaller companies just have to hope that they will never step on one of the land mines.)

No wonder that the main proponents of software patents are patent lawyers.

Footnotes

[xenocide2]

Jesus, I'm about halfway through this paper, and I'm pretty sure the twist at the end is that the whole thing was written by a very preminiscient Jefferson.

guess you're not a wallace & grommit fan...

[Anonymous Coward]

there's a scene in one of the vids where wallace says "hey, I've got pay-tent pending on that!"

A Close Shave, maybe?

Animated Films

[trurl7]

Speaking of animated films, I think there's an opportunity here for a new direction in anime:

1) The Schoolkids genre - our hero is a high school boy with mystical powers. He is periodically posessed by the spirit of a patent examiner who can defeat software patent applications by pointing out prior art.

2) The Mecha genre - to get a patent accepted, corporations must defeat their opponents in a fight with giant robots. The hero belongs to an elite Anti-Software-Patent team that uses superior technology to destroy the evil corporate patent-bots.

3) The Magic Girl genre - the hero (necessarily a young girl) finds a magic briefcase, that, when opened, transforms her (in a suitably protracted and enticingly revealing transformation sequence) into a young woman who is a patent attorney fighting (pro bono) against corporate software patents in court on behalf of the EFF.

4) The Magic genre - patents are actually spells woven by powerful and evil corporate patent-conjurers. The hero is a young man who awakens to his power as a patent-sourcerer. He must fight a sequence of increasingly difficult battles, starting with a local software company, and ultimately challenging the most powerful patent-conjurers of all - the Emperor of Microsoft's personal mages - the dreaded cordaukar!

5) The Historical Drama - set in Japan's Sengoku Jidai (the Era of the Country at War), the story follows the adventures of an open-source ronin who is constantly attacked by evil samurai who have abandoned the Code of Bushido for the Corporate Mission Statement.

6) The Romance genre - the hero (an anti-software-patent comp. sci. student) falls in love with a young woman, who, unbenkownst to him is actually studying to be a software patent lawyer!

7) The Fighting genre - this one should be obvious. Like the Mecha genre, except that battles are fought between martial artists. The hero is a young punk who does not believe in all the martial arts codes - he is a street fighter, there to challenge the sanctity of the software-patent-sponsored "traditional" martial artists.

8) and finally, what everyone's been waiting for - the Hentai Genre! - patents are actually monsters from another dimension, whose only purpose in life is to get entrance into this one to have their unspeakable way with innocent young high-school girls (described in highly graphic endless detail). The heroine must "fight" the monster-patents to destroy them and make the world safe for....open-source developers.

We can count on certain highlights in this movement - for instance a suitably confusing and existential exploration of the the inner life of a software patent attorney directed by Hideaki Anno, a movie called "Ghost in the Brief" directed by Mamoru Oshii, and a soundtrack by the ever-brilliant Yoko Kanno. Look forward to it!

Re:Animated Films

[dodobh]

7) The Fighting genre - this one should be obvious. Like the Mecha genre, except that battles are fought between martial artists. The hero is a young punk who does not believe in all the martial arts codes - he is a street fighter, there to challenge the sanctity of the software-patent-sponsored "traditional" martial artists.

Nah, the hero is a young open source developer who gets sued for patent violations, and then learns martial arts to fight off the evil agents of the patent mafia, using his hacking skills to crack the lawyerese.

I know Kung Fu!

Anything that makes software patents harder to use

[alispguru]

... is fine by me. I especially like the requirement that marking would put on the patent owners to "police their licensees". According to the FA, if B licenses a patent from A, A must watch B and insure that when B sells something using A's patent, B marks it with the appropriate patent numbers. If A lets B get away without marking, A loses its rights to enforce the licensed patents.

Currently when the big guys cross-license their patent libraries, usually no money changes hands and they don't change how they do business - it's a CYA formality used to make life difficult for businesses without big libraries. If marking were required, licensees would either have to:

read the libraries and pick the patents that they actually used

mark every product with "May contain technology based on ... 10,000 patent numbers"

risk invalidating patents licensed to them, and getting sued into oblivion by the owners

Keeping a licensed patent in force would cost something if marking were required. Keeping a lot of patents in force would cost a lot. What's not to like?

If this were the case...

[E-Rock-23]

...then software boxes wouldn't have much room for product info and what not, what with all the patent numbers they'd have to print on it...

test before granting patents!

[scoile]

No patent should be granted for any computer algorithm if the same or similar idea can "discovered" by an industry-selected board of programmers and architects.

Get the IEEE or ACM to appoint 50 computer engineers. One, two, or three engineers are assigned to each (non-obvious) software patent candidate that comes in. They receive only a desciption of the problem the invention addresses, but no details of the invention itself. They have 24 hours to propose as many solutions to the problem as they can. If one is identical or "reasonably" close to the patent candidate, the patent fails.

The problem with "marking" is that it does nothing to people that are faced with a problem and attempting to implement their own solution, but haven't actually used any existing solutions. They'll never see the markings!

Re:test before granting patents!

[back_pages]

No patent should be granted for any computer algorithm if the same or similar idea can "discovered" by an industry-selected board of programmers and architects.

WTF does that have to do with patentability? Before you reply using the word "obvious", read MPEP 2143-2144. Here's a start:
MPEP 2143
Continue with the links at the bottom to read through the MPEP 2144. If you have not read and at least attempted to understand this text, you are not qualified to debate the topic of obviousness in the US patent system.

Get the IEEE or ACM to appoint 50 computer engineers. One, two, or three engineers are assigned to each (non-obvious) software patent candidate that comes in. They receive only a desciption of the problem the invention addresses, but no details of the invention itself. They have 24 hours to propose as many solutions to the problem as they can. If one is identical or "reasonably" close to the patent candidate, the patent fails.

That's not a bad idea. So you're giving 50 people roughly 3 work days to come up with the solution. Fuck government inefficiency, the USPTO gives 1 person 1 work day to get that amount of work done, and your solution doesn't even begin to address the legal question of "obviousness".

I'm not saying that you propose a bad idea, but rather you're proposing a solution to a radical misunderstanding of the problem. The USPTO has literally no legal jurisdiction over whether or not an idea was hard to come up with. It only has legal jurisdiction over whether the idea was legally obvious, a concept that is briefly described in MPEP 2143-2144.

I agree that your suggestion (and other like it) could benefit the US patent system, but you're addressing an issue that is completely beyond the USPTO's legal authority.

Re:test before granting patents!

[bit01]

you are not qualified to debate the topic of obviousness in the US patent system.

There is a fundamental disconnect here.

We know the patent office is using a self-serving, legal definition of obviousness. We are saying that definition is garbage, as even a cursory examination of recent software patents will show.

Patent lawyers claiming that software creators are not qualified to talk about it are missing the point. We are a helluva lot more qualified to talk about true obviousness in software than any lawyer. The fact that the typical patent lawyer is happy to ignore that says a lot.

you're addressing an issue that is completely beyond the USPTO's legal authority.

Typical bureaucratic finger pointing. God knows why, but congress takes the patent office's advice on patent law (the foxes watching the hen house!) and the patent office could easily be a leader in bringing in new, more just law. As it is, they're just bureaucratic empire building. It's a real shame their pettiness is causing so much harm.

---

Patents by definition restrict distribution and are incompatible with standards which by definition are supposed to promote distribution. Say no to patents in standards!

Re:test before granting patents!

[back_pages]

We know the patent office is using a self-serving, legal definition of obviousness.

I'm not going to say that you don't have the slightest clue what you're talking about, but the definition of "obvious" used by the USPTO was created by the judicial branch of government.

We are a helluva lot more qualified to talk about true obviousness in software than any lawyer.

You clearly have not read the sections of the MPEP I have cited. You are clearly not qualified to discuss the topic of obviousness in patents.

God knows why, but congress takes the patent office's advice on patent law (the foxes watching the hen house!) and the patent office could easily be a leader in bringing in new, more just law.

See above. The judicial branch of government creates case law that defines how the USPTO operates. This is an extremely basic concept. You haven't stumbled upon some insight with a clever colloqialism about the fox in the henhouse. Your statement is based on a completely erroneous basis.

In conclusion, I reiterate that you are completely unqualified to hold this discussion. It's not an insult; rather it's an invitation to exercise the wisdom of knowing one's bounds. If you'd like some very informative information, I'd be happy to provide some links.

Also, I'm not a patent lawyer. I'm a BSCS who took the time to educate himself about patent law before shooting off at the mouth.

Why oh why

[iminplaya]

do you people insist that any IP law actually promotes any kind of innovation? The only result we have from these laws is speculation and hoarding. Human progess will be forever stuck in this quagmire as long as these laws remain on the books. You seem to think that without those corporate billions, we wouldn't have anything more advanced thatn a donkey cart. Well, you would be wrong. Quit the nit-picking, and cut to the chase, would ya? IP law,ALL IP law is designed to protect vested interests, nothing more. It has always been this way for all 295 years of this atrocity. Yet you all continue to gulp down that "kool-aid". Anything less than complete abolition is a sham designed to maintain the status quo.

The paper's author doesn't get it

[cdrguru]

He obviously studied "software patents" in a very abstract sense and thinks they point to perceivable objects in the world. Things you could "mark" somehow.

The problem is much closer to a chemical plant and its products. Sure, there may be a single patent on a product like a drain cleaner, but there can be hundreds of patents on the machines used to produce this chemical product.

Most software patents that are really troublesome are not the products on the products themselves but patents on tools and techniques used to make the products. These are hidden away and no amount of "marking" is going have any benefit whatsoever on this sort of usage.

Yes, I am listed as the inventor on at least two software patents. I think they are all silly, but today that is the price one has to pay - cross-licensing. You violate someone's patent and the defense is they are violating your's. So you cross-license and everyone is happy again. It is closely tied in with both the VC and legal communities, and until they go away software patents aren't likely to either.

Re:The paper's author doesn't get it

[Anonymous Coward]

This is the author: By software patent I mean a patent implemented in software. You agree that is reasonable, right? So mark the software that implements the patent. A sorting algorithm, or some kind of user interface concept, that's what I'm talking about. Whether it is visible to the user or not isn't relevant.

Now, you may have patents on very abstact things like UML where it is very arguable whether the invention is present in the end software, but I assure you that most of the patents that the big companies like IBM, Intel, and Adobe get are very concrete and are implemented in products
that sell many, many copies.

What to do about UML and design methodology patents is an interesting question, but please understand that while you and I both have graduate degrees in computer science, getting into that level of detail wouldn't really push the paper forward. Either the reader accepts what I say and the paper encourages discussion, or the reader disagrees with what I say. The difficult cases of design methodology patents and online services would just detract from the underlying proposal.

IBM Progress bar patent

[NigelJohnstone]

The paper mentionsthe IBM progress bar patent from 1990: Patent on progress bar

Here's a screen shot from the Apple2GS (Actually its running on a GUS emulator becauses it way too old). AppleIIgs screen shot

Notice the progress bar it displayed as it was starting up. Thats from 1983?

That's a European patent.

Re:IBM Progress bar patent

[Anonymous Coward]

Well, the Apple IIgs was introduced in 1986, and
GS/OS didn't come out until 1988, but even so,
this is before the 1990 date on this patent.

What would happen if companies applying for
patents on things with prior art not only had
their applications rejected, but had to pay an
additional fee. Might this make the system more
self-monitoring?

Keywords for Software Patents

[thewiz]

In one word: Garbage

harder for who?

[kebes]

The problem is that the scheme you describe is fairly easy for big companies to implement, and impossible for small-time inventor/programmers to implement.

One of the main objections to the current patent system is that it has a large barrier to entry. This makes it difficult for the "small guy" (which includes most F/OSS projects) to play with the big-boys. The small guy has to pay all kinds of court fees, do extensive patent searches, and jump through all sorts of hoops, even if he ultimately wants to give *away his software and source code for free*!! To say nothing about small companies or individuals that want to take out a valid patent.

Big companies won't mind writing up tons of documentation. Every single one of their products will simply mention *every* patent # their own, just to be sure no one can claim they were not warned. The little guy still has the impossible task of navigating this complex system.

Re:harder for who?

[alispguru]

One way to level the playing field would be to make the "May contain..." option above illegal. The reason for marking should be to let people know which patents are getting used - it's not useful to tell the consumer or potential reverse-engineer that "one of these 10,000 patents may be inside this product".

If correct, explicit marking becomes a requirement, big libraries of software patents become less useful:

If you license them you have to watch your licensees

If you don't license them, and don't use them yourself for commercial advantage, they're only useful in lawsuits to threaten competitors - a pretty weak reason for a state-granted monopoly

Re:harder for who?

[Anonymous Coward]

This is the author: There are penalties for "false marking" under the law: $500 a pop. Inventors are pretty careful not to mark products with inapplicable numbers.

How do patents work:

[zippthorne]

If I patent a machine for producing PBJ's, and you see the patent, are you allowed to copy my machine for your own personal use? or are you restricted from using the knowledge in my patent altogether? (disregard the possibility that armitron may be prior work)

Re:How do patents work:

[Anonymous Coward]

For personal use, yes. Also because you've disclosed how your PBJ machine works I can look at it easily and say "ha, I can improve that design and make my own PBJ machine that will run twice as fast" this inventive step as it is called is then itself patentable. People often call this process innovation.

People are not businesses

[travler]

A lot of our laws especially concerning things that businesses have historically provided for the population are not geared towards how individuals behave but rather large business entities. So there is a sort of 'impedence mismatch' between certain sets of laws and how society is evolving. Intellectual property laws being one of those 'sets'.

Historically large businesses produce goods which ordinary people then consumed.

Now ordinary people are starting to produce goods for orther ordinary people (blogs/podcasts/software/web services/etc...). Thanks to modern technological advances you no longer need huge investments of capital to create, market, and sell things. I can market and sell all by myself thanks to the web. If my product is information-related odds are I can create it cheaply either by myself or with a small group as well.

So while laws regarding copyright, patents, and trademarks work well for businesses that have access to large amounts of capital (what is 50k for filing a patent when it costs us millions to create/market our product) they work against the individual or less capital-intensive businesses.

While personally I think all IP related laws need to be abolished (with the possible exception of trademark but even there I'm not 100% convinced) they definitely need to be made easier to deal with for smaller business entities that don't have ready access to lots of capital(aka money).

Re:USTPO does not suck!

[Anonymous Coward]

I am tired of everyone ragging on the Patent Office. Despite what everyone thinks, the Patent Office does not decide the standard for patentability. The PTO has to comply with legal opinions rendered by people with no technical experience. That is the problem. The PTO merely implements these rules. For years the PTO refused to allow software patents until the courts told them that they had to. The same thing happened with business methods.

Most people don't know this, but proving something obvious without an explicit source that says something is obvious is near impossible now, due to legal rulings.

The PTO can't waste time letting the courts decide what is patentable, when they already know what their answer will be.

And for crying out loud if you don't understand the patent process, shut the hell up. The title of patent does not count for SHIT!!!
(my opinion only)

Re:Section 4, Solution to Arrows Information Parad

[enjahova]

But the worst case of software patent abuse is when patents are made to protect obvious ideas. I think that the nature of software being rapidly changing promotes progress, rather then patents. I still have a good bit to learn about all this, so Id like to thank you for pointing me towards Kenneth Arrow.

Obvious solution to the SW patent problem:

[Rattencremesuppe]

Don't allow software, algorithms, logic etc. to be patented in the first place. Make sure that existing patents can never be infringed by any software, algorithms, logic etc.

Political Patents

[Usagi_yo]

Hmmm, I'll think I'll start patenting:

"A system for soliciting money and applying monetary incentives to induce political dialog on selected social-economic issues through elected officials".

Then start the lawsuits flying against Lobbiests and Politicians. That will get their attention and prove our point.

Another way

[Nf1nk]

The owners of intellectual property have created a mass of strange and new kinds of property. There can be only one real long term solution.
PROPERTY TAX.
Yep, let the company assess a value to each patent and charge the holder 1% PER YEAR, however the max damages for violating this patent can only be its value. I can just feel the national dept melting away.
not sure wether this was sarcastic

Re:Another way

[Anonymous Coward]

Genius, that will fix the purposefully misleading "intellectual property" term faster than the fact that it's at best a meaningless phrase used soley to extort money from idiots.

Re:Another way

[compm375]

That's actually a good idea, since we are calling it property and giving it the advantage of patenting property, they should have to pay tax on it.

Re:Anything that makes software patents harder to

[Anonymous Coward]

Um May contain is illegal. IANAL but the article clearly points out that there have been and presumably as part of this proposal should be in referecne to this laaw major penalties for mis-marking. In order to properly mark with a selection of 10,000 patents to chose from is presumably the same problem as infringment detection which again acording to the article costs between 20-100K USD per patent/product in legal work. Even if you can get away with the 20K base line for a major player say ~10^3 products and cross licence of ~10^4 patents thats about $200,000,000,000 in compliance costs. Even Microsoft would blink methinks.

No, You're The One Who Does'nt "Get It"

[davide marney]

Wow, there's so much misunderstanding of the parent's basic point. Guess people didn't read the source very far.

The point is that by simply insisting that current patent holders obey the rules that other holders have to obey ("marking"), coupled with restoring the responsibility to defend your claim, or lose it, you make it impossible for the current sad state of software patents to continue.

You don't have to chuck out the system, you just have to get it back on its original track. The rest will take care of itself.

software patents.

[rice_burners_suck]

Here's what I think. Want to patent software? Think you're the greatest programmer who ever lived and your code is something that nobody has ever thought of before? Ok. Here is what I propose: Allow software patents under the following conditions: The person or company filing for the patent must pay a much larger fee than for other patents so that a special task force in the USPTO can research the stuff in-depth to make sure that it really is unique, non-obvious, etc. And you have to give the USPTO access to the complete source code and complete documentation for the inner workings of that code, so that any programmer who goes through the material will learn exactly how and why it works and how and why it is so special. This source code, which so-called "content providers" have a way of calling "software blueprints", shall be made completely open and available along with all the other documentation for the patent, so that any programmer will be able to reproduce it completely, in exactly the same way as the blueprints for other types of devices are available. All of this is going on while the product is still being sold.

Time to Rework patents........

[tempest69]

Right now the problem is that any bozo with a reasonable idea on how to get something done can patent it. A tiny bit of foresight and you can sit on a simple solution for years. Patenting "Use of matrixed light emiting polymers as Dynamic home wallpaper" doesnt exactly take a rocket scientist to realize that it might take hold in the relatively near future, and that there are no "Prior Art" issues because light emiting polymers are still in their infancy.

So what is the problem with that patent? Why shouldnt some guy make millions off the idea of "dynamic wallpaper"? The reason is that it's too obvious of a solution to patent. But then a reply might be "Well it isnt that obvious to me." The reason is that patents aren't stated in a way that explains what problem they are trying to solve. I'll get to why that's important.

So then what should be Patented? I'm going to go out on a limb here and say that there should be at least two types of patents. One would be a simple design patents, where the design of a mechanical alarm clock would qualify. The second would be an operational principle patent, covering the uses of objects, for instance patents on the CD-RW, where the cooling speed of glass is used to encode bits, would be an operational principle patent.

So what would be needed for an operational principle patent? I'm inclined to say that it should state a problem that is trying to be solved, within a set of constraints that the pending patent can meet. Then the patent should be validated by having a person with a degree in an aligned field attempt to solve the problem, within the given constraints within a one day timeframe, and given solid research resources to find information to get it solved. The operating principle wouldnt be bogged down with design information, it would just fill the simple niche of stating how something is accomplished in a general sense, for instance Hitachi's new perpendicular recording technology would be an operational patent, whereas their enclosure would fall under the design patent. http://www.hitachigst.com/hdd/research/recording_h ead/pr/

So the big change I would make: State the problem, and test to see if the problem can be solved by a talented clerk in 8 hours, if the problem can be solved within the constraints by the clerk (even if the clerk has a totally different solution) then the patent is bogus. And yes, this will cost way more cash to check operational principle patents, but that's something for the patent office to work out with fees.

Storm

P.S. Please Feel Free to rip this apart, hey it's only an idea.

Re:Time to Rework patents........

[Anonymous Coward]

Ha, light emitting polymer wallpaper was done years ago.

US6605483

NOVELTY - A light-emitting polymer (LEP) device is manufactured by providing a transparent electrode-containing substrate to act as first electrode, screen-printing a hole-injection layer on the substrate, and screen-printing an LEP layer on the hole-injection layer.
- USE - For manufacturing LEP device, e.g. LEP wallpaper that replaces incandescent and fluorescent wall lamps.
- ADVANTAGE - The process is inexpensive and allows the creation of patterns of varying size that can illuminate with varying degrees of brightness either all at once or at different times to create an animated display.

Re:Time to Rework patents........

[tempest69]

doh, I'll Patent the LEP Softdrink Cover!!! That'll Show em. Animated advertising, heck we could even integrate it into existing plastic bottles.. wait a minute, someone has that too dont they, evil capatilist monkeys.

Storm

Re:Yes it does

[symbolic]

The problem with software patents is that there are far too many methodologies that either draw on, or depend on far too many other methodologies. Before software patents, you could take an idea and make it better. This was good for the consumer, because it accomplised two things- it makes it more difficult to stagnate, locking customers into an implementation that is substandard.

Let's say that someone develops a lightweight app that does something specific, but does it very well. Too bad...the customer can't benefit from this because [insert your favortte corporate pirate here] claims they already own that methodology. If the customer wants to benefit from this methodology, they have are forced to purchase a product at a price that they don't want to pay, for functionality they may not even want.

Think about how stupid this is. The natural lifecycle for software is to start out lean, and work its way toward an untenable state of bloat. Welcome to the upgrade treadmill. Granted, additional and improved features are nice, but it's an all-or-nothing proposition. If you want to do something that requires methodology x, and the only way to get it is by spending a boatload on software y, you are also forced into getting a lot of crap you neither want nor need.

Let's say that the software company is willing to set up licensing terms. This company has a patent on a specific method, but the manner in which they've implemented it either sucks, or requires too much overhead. You come up with a much better implementation, but the licensing fee means that THEY get paid for YOUR work. This is why methods are far too broad. For those that understand OOP, companies are granted ownership of specific interfaces, which means that they'd also be able to claim ownership of any implementations- a rather bleak situation.

If they are amercians

[bluGill]

If they are European, then they cannot patent software - yet. (Or do some countries allow software patents already?) Even then, in Europe a patent must be filed before public disclosure. The US is one of the few (only?) countries that allows patenting after disclosure.

Though your point still stands, those old things are not patentable.

PrintFu Printed Version price: $5.60

[Anonymous Coward]

Printed Version of: http://www.stanford.edu/~lindholm/SSRN-id642123.pd f

It takes a second for the server to download the PDF.

P.S.

[Alsee]

More on your "Turing complete" comment...

Mathematics is indeed turing complete. Any software can be directly translated into an identical pure mathematical function with any input to the sofware as parameters/values to that function. The final value(s) of that pure math mathematical statement will be identicial to the output of that sofware.

In fact some mathemtitians have been doing exactly that, converting (*small*) software programs into the identical math statements and running that math statement through automated theorem proovers to prove the correctness or other mathematical properties of that software. For example they ran CSS and DeCSS through the theorem proover to prove that the DeCSS equation always worked and produced the correct and unique decryption for any possible set of input values.

All possible sofware really is nothing but a special form of mathematical statement.

-

Re:Section 4, Solution to Arrows Information Parad

[Anonymous Coward]

This is the author: I could have better explained myself, thanks. The idea behind Arrow's Paradox is that an inventor is trying to sell his invention to investors, say. He would like to keep the details a secret but he cannot do that because no investor will pay for something without knowing the details. This is a little different than showing off software as a black box, because 1) showing a database doesn't show how it works on the inside and 2) in the case of the database, the invention has already been implemented. If it helps, think about a new kind of caulking gun. If you show it to a manufacturer, they can steal your idea pretty easily, right. But if you don't show it to them, they won't be willing to pay for it just because you say it's better.

Arrow's Paradox is fairly well known -- Kenneth Arrow did win a Nobel prize in economics (not for this, though), and I cited a few court cases where some schmuck inventor actually let his idea get stolen (they weren't software inventions).

You may be right that software inventions generally are "more perspiration than inspiration" but please assume for the sake of argument that we're talking about real inventions, like RSA, and not something like a floating toolbar patent. (I do try to slant the arguments to show that by and large these economic justifications don't really apply to software patents, the implication being that software patents are not justifiable as a matter of economic policy.)