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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.
Iran captures three CIA agents
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.
I Am My Own Worst Enemy
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.
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.
The simple truth is that interstellar distances will not fit into the human imagination
- Douglas Adams
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.
"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?
"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."
Weaselmancer
rediculous.
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.
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.
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.
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.
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.
Dahlmann tightly grips the knife, which he may have no idea how to use, and steps out into the plain.
An analogy with the real world:
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:
Whatever procedure they use to "mark" the code can be used to unmark it, because it's all just modifiable information.
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?
"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.
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.
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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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!
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?
To a Lisp hacker, XML is S-expressions in drag.
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!
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.
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.
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).
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.
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.
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