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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."
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.
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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.
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.
It already takes half an hour for Acrobat to display its list of patents when it loads.
...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.
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.
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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.
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...
Does it go on forever?
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.
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.
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...
"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.
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.
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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.
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.
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).
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.
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.
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.
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.
"We receive as friendly that which agrees with, we resist with dislike that which opposes us" - Faraday