Patent Pools and Pledges - Panacea or Placebo?

Commentary by Florian Mueller - Last year, a lot of noise was made by OSRM, the city of Munich, and Steve Ballmer about the risk posed to open source by software patents. This year, we've seen a variety of initiatives by companies that "donated" patents to "protect" open source, and organizations like the OSDL and the Open Invention Network now try to pool such patent pledges.

I've been wary of those patent pledges and pools from the beginning. There's an awful lot of dishonesty in these all-too-obvious attempts to curry favor with the community and reassure customers. While the jury is still out on some of those projects, none of them has so far delivered a single compelling reason for me to believe that they're really going to be more than a placebo. Some make it sound like these pools are a bulletproof vest for open source, but it's more like you have a coin in your pocket and hope that a bullet will be deflected by it. Too bad the coin isn't even in a place where someone would usually shoot you.

While I do agree that open source should protect itself as best as possible within the legal framework that exists, cheap PR plays are not a substitute for a real solution. The pledges that I've seen so far had all sorts of shortcomings:

- Some pledged patents are of little or no value. Among IBM's 500 patents "contributed" in January, there were some that had nothing to do withsoftware, and many were up for renewal soon, with no guarantee that they'd actually be renewed.

- The pledges typically just relate to particular open source licenses (sometimes rarely-used ones) or projects, such as the Linux kernel (which is only a small part of a standard Linux configuration).

- Some pledges are revocable or haveloopholes such as vague conditions under which the patent holder can sue you anyhow.

- So far the quantities of patents involved have been negligible compared to the total number of issued software patents, and even to the number held by the "generous donors." Even in the long run, there'll be hundreds of thousands of software patents in the world that aren't subject to any pledge. In his speeches, Richard Stallman likens software patents to mines in a park: If there are 90,000 mines in the park instead of 100,000, it's still far from being a safe place to walk.

Even if you don't look the gift-horse in the mouth, there are fundamental problems that even the best pledges can't solve:

- You can't practically go about your programming job by always looking up a patent pledge database whether it contains just the algorithms you need. I don't think any programmer would seriously do that! And even if algorithms A and B are covered by patents in a pool, there may be a patent C that covers your particular combination of A and B, and that patent C may not be in the pool.

- Pledges which exclusively relate to open source aren't too valuable. Software under the BSD license is used in closed-source projects all the time. A project like PostgreSQL, which already felt forced to replace a caching algorithm due to an IBM patent, couldn't just base its development decisions on open source considerations alone. Then there are dual-licensing models for GPL software (MySQL is a well-known example) and companies that sell closed source software to finance their open source development efforts.

- These pledges are only made by organizations that don't intend to sue open source projects anyway. Patent holders who are potentially hostile, be it for strategic or purely financial motivations, won't pledge anything. It's nice to firm up the commitment of your allies not to act against you, but it doesn't reduce the number of enemies.

- If a company promises not to sue open source projects over a certain set of patents, it still doesn't mean that those patents can be used by open source projects for retaliatory purposes. However, the patent game is one of mutually assured destruction, like in the Cold War. If NATO hadn't had a single nuclear weapon, and the Soviet Union had promised not to use something like 5% of its nuclear arsenal, then we probably wouldn't live in freedom now.

- Companies usually can't even make their patents available for the purpose of building a counterthreat because those patents are already subject to existing cross-licensing agreements. If a new entity (such as the Open Invention Network) started acquiring unencumbered patents, then one day they might be able to grant a license to a company like Microsoft in exchange for a covenant not to sue Linux with its own patents. That could indeed make a major difference (even if only for Linux), yet it wouldn't help against trolls that have no products of their own. And a strategic aggressor could secretly arrange for such a troll to do the job.

No matter how you look at it, the only way to reliably solve the problem is at the political level: through legislation that excludes pure program logic from the scope of patentable subject matter. Sure, there's no shortage of people out there who say this can't be done, but they're all wrong. We've been toldmany times that the European software patent directive would come one way or the other -- until we got the European Parliament to reject it by a landslide of 648-32. The German Bundestag and Spanish Senado unanimously backed our central demands. The new German government has just vowed to counter, at the international level, "the trend to seal off markets, among other things by means of patent law." The time is ripe for legislative action.

Some members of the legal profession claim that software patents are an unalterable fate because theyhave a vested interest in sustaining the system. It's a tall order, but definitely possible, to change the legislative framework in our favor. In every parliamentary democracy.

Especially in the field of software, the patent regime no longer serves the public interest. In a perfect democracy, software patents would already be history. In the suboptimal democracies in which we live, there are special interests that oppose changes. Those have influence and deep pockets, but at the end of the day the most valuable currency in politics is voter popularity.

If all the companies who have pledged patents to open source, or who have contributed to those pools, decided to seriously campaign for legislation that abolishes software patents, then the problem could be solved for good. As long as they don't do that, they're not for real. Some may even have a hidden agenda of creating patent pools to gain effective control over the open source universe. We've got to watch out.

Florian founded the NoSoftwarePatents.com campaign. For his political efforts against software patents, he has been named as one of the "top 50 most influential people in intellectual property" according to Managing Intellectual Property magazine and is a candidate for the title of European of the Year.

Comments

Oh no...

[voice_of_all_reason]

my brain...

Re:Oh no...

[Anonymous Coward]

I've patented the process of thought, i'm glad you are not trying to STEAL my ideas, leading me to living in a ditch feeding my family and cat from roadkill. thank you for your compliance.

Re:Oh no...

[voice_of_all_reason]

At no point in the article's rambling, incoherent response did it come even close to anything that could be considered a rational thought. Everyone on this site is now dumber for having listened to it. I award it no points, and may God have mercy on its soul.

Re:Oh no...

[daniil]

Yet more proof that against clever rhetorics, reason is powerless :H

Won't touch it - too much "P" in the headline

[xxxJonBoyxxx]

Won't touch it - too much "P" in the headline

Re:Won't touch it - too much "P" in the headline

[Joey Patterson]

Please praise the parent poster for pointing out the plain presence of precocious patterns of P's which were pensively previewed in the published post.

Accurate Aliteration, Absolutely

[saskboy]

"However, the patent game is one of mutually assured destruction, like in the Cold War. If NATO hadn't had a single nuclear weapon, and the Soviet Union had promised not to use something like 5% of its nuclear arsenal, then we probably wouldn't live in freedom now."

The topic title taught us terminology.

Patent MAD seems like the only way to get to be a big company these days. With the dot com boom over, what else could possibly take a small company and make it competitive with a giant like ebay.com? Skype got bought out by who else? Ebay.com

A giant like eBay with their mountains of patented software stands to make a fortune every time someone else tries to write some of their own software to sell something on the Internet.

Re:Accurate Aliteration, Absolutely

[smittyoneeach]

A giant like eBay with their mountains of patented software stands to make a fortune every time someone else tries to write some of their own software to sell something on the Internet.

But but but...I thought that patents were about protecting the little someone else, so that we could continue to innovate?
Or is it all about wealth transfer from the innovators to the bureaucratic/legal ecology that has sprung up around software patents.? One is tempted to cynicism.

Re:Accurate Aliteration, Absolutely

[steveit_is]

"Patent MAD seems like the only way to get to be a big company these days. With the dot com boom over, what else could possibly take a small company and make it competitive with a giant like ebay.com?" Maybe someone should be selling 'accidental patent violation' insurance to small companys? The small company wins, the insurer wins, and progress gets to live.

Re:Accurate Aliteration, Absolutely

[sterno]

"However, the patent game is one of mutually assured destruction, like in the Cold War. If NATO hadn't had a single nuclear weapon, and the Soviet Union had promised not to use something like 5% of its nuclear arsenal, then we probably wouldn't live in freedom now."

Interestingly, the patent world is evoling in a manner similar to the geopolitical one. Patents, historically, have been about detente and mutually assured destruction. Big companies would use the patents to wield power in the market, negotiating cross-licensing with eachother, and keeping their grip on the market place. The super powers in stalemate.

But today you've got the patent equivalent of Al Qaedas. People with single patents or small patent portfolios who contribute no product and base their entire business plan on lawsuits and licensing. Having a mass arsenal of patents does you no good against these companies because they don't make anything that you could sue them for. Small companies that legitimately want to make products are stomped by the big guns and the big guns are held ransom by law firms in IT clothing. This leads to an overall decline in innovation.

The patent system is in need of a drastic overhaul. My thoughts:

1) Require that patents only be able to extract license fees equivalent to a simple formula:

    R&D Cost + Legal Fees * 20%

Perhaps add some interest equation in there, but my point is this. If you want to research something, you'll be guaranteed licensing to cover your costs. If you have to sue to get compensation, that will be covered. Then you'll be guaranteed a profit margin of 20%. Once you've recouped the money, the patented item becomes publicly available.

2) Vastly increase the hurdles to getting and maintaining a patent. This would include exponentially increasing fees per year to maintain a patent (proceeds from this being directed back into the patent office to afford better review of the patent applications).

Re:Accurate Aliteration, Absolutely

[jasongetsdown]

Or require that the patented technology be implimented in a product available from the patent holder. This would prevent trolls from making money off their portfolios alone. Patents should only protect those who are putting themselves at legitimate risk to bring a product to market and who need some guarantee of return on investment.

Re:Accurate Aliteration, Absolutely

[ceoyoyo]

Patents are already too expensive for the people they're meant to benefit -- individuals and small companies. Making them more expensive won't help anything. Patents should be cheaper, but harder to get. You absolutely should be able to provide a working copy, and it should actually be non-obvious.

What about a system where you file a provisional patent application (basically saying hey, I've got this idea... remember, it's mine), then you publish a paper in a peer reviewed journal. Once that happens, the patent office has a look at your patent application. That way they can use this immense review system that's already in place, and the real experts in the field will be looking at new ideas. There might be a few types of patent that wouldn't work for, but it should be fine for most.

Re:Accurate Aliteration, Absolutely

[einhverfr]

But today you've got the patent equivalent of Al Qaedas. People with single patents or small patent portfolios who contribute no product and base their entire business plan on lawsuits and licensing. Having a mass arsenal of patents does you no good against these companies because they don't make anything that you could sue them for.

IANAL....

Yet, it seems to me that every case I have seen of this has eventually resulted in the demise of the companies whose primary products are lawsuits. Sure often you win a few lawsuits early, but eventually things turn sour. Part of the problem is that patents are expensive to enforce. So any legal setback is pretty serious from a business perspective. Finally, yes, patents cover *use* and can be selectively enforced so I suppose it would be possible to use defensive patents to prevent such people from using their normal software products and thus inflict arbitrary levels of harm on such plaintifs. Companies don't do this because they don't want to undermine their patent portfolio, and the big guns don't want to sue their customers (for use of competitors' products).

Now as to the main discussion question.... IBM has been a leader in this area for a number of years in a number of important ways. The IBM Public License under which OpenAFS was originally released (might still be-- haven't checked) was criticized by many for undermining the place of patents because suing a contributor over *any* patents (not just those in the software) terminated the plaintiff's right to *use* the software and thus was seen as providing permission to steal other firms' "intellectual property." A more limited approach, limited to the licensed software, was taken in the Apache License 2.0 and I suspect that IBM was a major player in that revision as well.

IBM's patent pledges in themselves are largely a slight-of-hand. And unfortunately they obscure the real work IBM has done in this area in terms of building real patent pools which can be used to defend FOSS. IBM has donated many patents to the FOSS world implicitly through such licensing of OpenAFS, Cloudscape, and more. And more importantly, they have encouraged others to do the same by pioneering the inclusion of patent licenses with automatic revocation in the event of certain types of patent suits.

Re:Accurate Aliteration, Absolutely

[Yaa 101]

The duty of making a working model will cut 99% of the patent crap out there, nowadays people get away with patenting ideas instead of working applications.

Re:Accurate Aliteration, Absolutely

[camt]

2) Vastly increase the hurdles to getting and maintaining a patent. This would include exponentially increasing fees per year to maintain a patent (proceeds from this being directed back into the patent office to afford better review of the patent applications).

How does this help the current situation? Wouldn't this just serve to price the "little guy" out of the patent market entirely, leaving patents solely in the hands of the likes of Amazon.com et al?

Re:Accurate Aliteration, Absolutely

[samkass]

Patents are about having the confidence to share your methods and ideas while still being able to profit off them. Without patents, you choose between either publishing your ideas OR making money. Patents allow both. But since money usually rules such decisions, without software patents you'll tend to get a lot of secretive inventions and methods, and less overall innovation because people can't build on each others' work. They are inherently litigation-prone, since only the court determines whether a competitor's project infringes, but as the author says, they set up land mines in the path of anyone trying to take advantage of your invention without paying you. I don't think it's coincidence that the nations with solid IP laws tend to do better economically.

As to patents and open source, well, obviously if open source fails to innovate they are at constant risk of infringing on other people's patents, and have a vested interest in abolishing patent law as it stands. The common cry of "why doesn't someone write an open-source version of that app/service/technology" is an admission that closed-source was the innovator in that realm-- and I hear that a lot.

Instead of eliminating method patents on software methods, I think basically only two things need to happen: 1. The threshold of "non-obvious to one trained in the art" needs to be way higher than it is today, and 2. The primary detractors of software patents (ie. open source) need to start leading innovation instead of following it, thus either acquiring their own patent library or putting enough in the public domain that patent worries in a given area are irrelevant.

Re:Accurate Aliteration, Absolutely

[AigariusDebian]

But since money usually rules such decisions, without software patents you'll tend to get a lot of secretive inventions and methods, and less overall innovation because people can't build on each others' work.

Total bullshit! If the idea is implemented in a product, you cann't hide it anymore. However you can protect it by patent, thus barring anyone the possibility to build on your work. (Or event just repeat your work).

Re:Accurate Aliteration, Absolutely

[smittyoneeach]

Solomon's observation 'there is nothing new under the sun' never hit any harder than with software patents.
For languages, we have Algol, Lisp, and a bazillion variations on the theme.
After packet-switched networks, let's see, there are a bazillion variations on the them of 'protocol'.
This 'software patent' nonsense is 100% pure belief system. I shall as soon become a 5-point Calvinist as believe that Bezos actually led any innovation other than 'creative mindfscking' with his One Click Shopping.
As muggings go, the software patent system is easily as refined and civilized as they come. Viva patents, and intellectual dishonesty!

Re:Accurate Aliteration, Absolutely

[deblau]

1) This creates a tremendous incentive for companies to lie about how much their R&D cost them. Every dollar they can fake on paper is another dollar they get from their monopoly. If it's a big enough number, they'll make more than they would have under the current 20-year system. And big companies will spend $200k on a court case if it gets them an extra $10m in covered 'costs'.

2) Throwing more money at a problem does not solve it. With due respect to the PTO, giving more money to patent examiners doesn't make them smarter or faster. And hiring more patent examiners makes the system even bigger, which means more dumb patents get cranked out. It sounds like you're just trying to punish patent holders. And how does this strategy jive with your simple formula? There's no allowance for patent fees, so the patentee could end up underwater anyway. Adding fees to the formula defeats the purpose of raising the fees in the first place.

I Think It's the PR Value

[Mateo_LeFou]

Not to say it's a PR "stunt" or "trick", but it makes certain vendors conspicuous by their absence from these groups. If you've got a town where there's a big organization pledging to protect the environment, but the biggest company in the town isn't signing on, it leaves an impression.

Re:PATENT THIS

[Anonymous Coward]

It appears that there is prior art preventing this patent.

The real problem is:

[RandoX]

Companies usually can't even make their patents available for the purpose of building a counterthreat because those patents are already subject to existing cross-licensing agreements. If a new entity (such as the Open Invention Network) started acquiring unencumbered patents, then one day they might be able to grant a license to a company like Microsoft in exchange for a covenant not to sue Linux with its own patents. That could indeed make a major difference (even if only for Linux), yet it wouldn't help against trolls that have no products of their own. And a strategic aggressor could secretly arrange for such a troll to do the job.

Re:The real problem is:

[Greger47]

Please enlighten me, whats funny about a cut-n-paste from the article text?!

/greger

Re:The real problem is:

[RandoX]

I wondered if anyone even bothered to read the article. We have a winner! Apparently we also have two mods who didn't read it, but WOULD HAVE found it insightful.

Re:The real problem is:

[Greger47]

Nah, they couldn't decide if it was funny or instightfull...

Moderation +2
    50% Insightful
    50% Funny

I guess you just hit the magic moderation bait: troll

greger

Competition and Collaboration

[under_score]

The problems with intellectual property of all sorts (copyrights, patents, trade marks, service marks) stem from a fundamental belief that competition is the most efficient mechanism for progress. This belief means that government's role is to protect players from excessive competition by granting intellectual property monopolies. Unfortunately, this has the side effect of strengthening the cultural forces against collaboration. Open source software development, which is fundamentally a collaborative model (collaborate to build code, collaborate to share code, etc.), is showing that such a model can be successful. However, given the competitive intellectual property culture, open source models are extremely vulnerable. My thought: over the course of the next few decades, the software world will become a proving ground to demonstrate that collaborative economic models are superior to competitive economic models. However, the vested interests in the competitive model will only very slowly come around to embracing the collaborative model.

Re:Competition and Collaboration

[adavies42]

The problems with intellectual property of all sorts (copyrights, patents, trade marks, service marks) stem from a fundamental belief that competition is the most efficient mechanism for progress. This belief means that government's role is to protect players from excessive competition by granting intellectual property monopolies.

Um, say what? I don't see how this follows at all. Ask the nearest libertarian, and the odds are he'll tell you that patents have no place in a truely free capitalist economy.

Re:Competition and Collaboration

[under_score]

You're right. From a libertarian or objectivist view that is true. However, I didn't say anything about capitalism. I was referring to competition and the two are not the same thing. Government is there to protect people from excesses of competition. A very simple example of this is someone who wishes to win no matter the cost to others and decides to try to kill their competitors. Government establishes laws, procedures and policing to, as much as possible, prevent this sort of excessive competitive behavior. Capitalism is a limited form of competition with a framework of rules (imposed and enforced by government). Capitalism, despite protestations to the contrary from some quarters, is not a worldview philosophy.

Our cultural trust in competition stems from a few sources, among them the misguided "survival of the fittest" notion, the obvious but incomplete material success of economic competition in our capitalist system, the system of competitive checks and balances in government, our perpetual quest to find an enemy to fight (communism, terrorism), and some things like the popularity of competitive sports.

Don't get me wrong: I think that some competition is very important for a number of reasons including motivation, efficiency, etc. However, our culture is so heavily geared towards competition that it lacks the balanced perspective that could be had by also considering the relevence of collaboration.

To get back to your comment... Typically, we don't look to government to encourage collaboration. But at least theoretically, it could. (Except that it would be incredibly hypocritical and therefore emasculated in its power to help others collaborate.)

Re:Competition and Collaboration

[Anonymous Coward]

I don't think it's caused by faith in competition, at least not in the traditional capitalist sense of producing something valuable for the lowest price. It's more like a lack of faith in this competition. The patent system discourages real competition, granting monopolies on production.

In this system, the successful corporation will be the one that most deftly competes for the government's protection -- not the one that most deftly competes to create the best product.

I think that real competition (for products, not for protection) is complementary to collaboration. Witness the widespread success of open-source software. The main threats to both collaboration and competition are government-enforced monopolies, created through measures like patents and the DMCA.

Re:Competition and Collaboration

[Znork]

I think you're assigning a bit too much meaning into the concept of economic competition; in a free-market competetive capitalist system, killing your competitors would most definitely be regarded as anti-competetive from a market point of view. A free market government would be obliged to prevent such anti-competetive behaviour to protect the market, even from a strict economic point of view.

"However, our culture is so heavily geared towards competition"

I'd say our culture is so heavily geared towards _winning_ that it likes to ignore the rules when they dont serve it.

fire with fire

[Douglas Simmons]

If your company gets sued because someone successfuly patented the double click which is used in your Linux servers, because the patent is so friggin' ridiculous, couldn't you sue the patent office? Take contracts, for example: If you were running a jetskiing operation and you had people sign a ten page fine print agreement basically saying not to sue for any reason, and for kicks you removed the throttle spring so they can't slow down (not using any bomb like in that movie), contracts may not hold up. And I'm not talking just contracts that include something illegal to be entirely void, just contracts that cross the line of reality a bit too far. Apply that to patents, and you got a viable case. Right? Any precedents one way or the other?

Re:fire with fire

[sedyn]

IANAL, but wouldn't there be a problem concerning the definition of what is ridiculous or not?

I say this, because wouldn't any court consider a patent office the highest authority of the land on patents? Therefore, from the court's perspective, if the patent office believes that the patent is fair, who are you to argue?

Re:fire with fire

[Douglas Simmons]

your question: Can you sue the government? Are there any precedents? the answer: Yes and yes the rambling douche: You

Re:fire with fire

[Douglas Simmons]

damnit .. trying to kickstart some flaming and what do I do but forget to post anonymously .. not to mention not using BR tags.

Re:fire with fire

[AKAImBatman]

Therefore, from the court's perspective, if the patent office believes that the patent is fair, who are you to argue?

Expert Witnesses with boatloads of credentials (e.g. PHDs in triplicate) can easily stack the odds far higher than the decision made by a patent office clerk. (Who probably holds only a masters, and not even in the specific field in question.)

The only sad part is that you actually need such heavy ammo for something that should be blindingly obvious. Unfortunately, justice is blind for a reason and it takes a lot of heavyweights for a decision to be made.

Re:fire with fire

[mavenguy]

IAANAL, but, in brief, I don't think so. The general principle, at least for the US Federal Government (and all state governments, for that matter) is the legal concept of Sovereign Immunity; the Government can only let others sue it under grounds and for reasons provided by law.

In the case of the PTO, AFAIK, it it is not possible for a party to sue the Government for damages arising from a patent infringement suit, or a threat of a suit by other parties. It's sort of similar to the fact that a litigant can't sue a judge who initially ruled against him, but was subsequently reversed on appeal. Perhaps a real lawyer will comment on this issue.

Oi

[SkyFire360]

Always avoid alliteration. Artificial amateurs aren't at all amazing.

Re:Oi

[WalterODimm]

Alarm! Alarm! Asshat Announcement!

Re:Oi

[Anonymous Coward]

And Oi Rhymes With Alarm. Amazing.

about that...

[sedyn]

Just me wondering, how well do patents work in general?

FT...A...C[ommentary]: "And even if algorithms A and B are covered by patents in a pool, there may be a patent C that covers your particular combination of A and B, and that patent C may not be in the pool."

1) Wouldn't prior art mean that C isn't legal unless the person/company holds patents A and B (in other words, couldn't patent holders A (inclusive) or B go after patent holder C for infringment?)

2) In closed source, how can it be determined (legally) that someone is infringing on another's patented algorithm?

If the later can only be determined in free software, then doesn't that mean that a strict patent enforcement system wouldn't benefit anyone but closed source programmers?

That being said, I don't know a thing about patents, and they kinda scare me (I picture a patent-boogeyman when I think about it) or is that what they are supposed to do?

Re:about that...

[Greger47]

1) Wouldn't prior art mean that C isn't legal unless the person/company holds patents A and B (in other words, couldn't patent holders A (inclusive) or B go after patent holder C for infringment?)

No, the patent itself it not infringement. But the inventor of C can't make use his invention without getting a license for patents A and B first.

Re:about that...

[arkanes]

1) Wouldn't prior art mean that C isn't legal unless the person/company holds patents A and B (in other words, couldn't patent holders A (inclusive) or B go after patent holder C for infringment?)

No, you can patent innovations that derive from other patents, including combinations.

2) In closed source, how can it be determined (legally) that someone is infringing on another's patented algorithm?

(Software) patents cover behaviors, not just implementations. If your patent covers a method of embedding data in documents, you can generally tell from the applications behavior if it infringes - at least enought to start a lawsuit and begin discovery.

That being said, I don't know a thing about patents, and they kinda scare me (I picture a patent-boogeyman when I think about it) or is that what they are supposed to do?

Pretty much, yeah.

My quick & dirty solution to our patent troubles:

1. Shorten the terms. You get 5 years for free, and you pay logarithmically increasing fees after that. By holding a patent, you're withholding knowldge from the public good, and that should be taxable.
2. Mandatory licensing. A patent is there to encourage you to profit off your invention, to make it more likely that you will produce things based on it and thus benefit the public good. If you can't make a usefull product based off your license, then someone else can. This has the side effect of removing patent MAD.
3. Require implementation. You don't have to do it when you file - it can be in the "patent pending" phase - but when that time is up you either need a practical implementation or you lose your patent. Speculative patents are stupid.
4. Reduce burden of proof to legally challenge a patent - the patent office is clearly not capable of fully validation patents, so the legal presumption that it is needs to be removed.
5. Independent invention should be de-facto evidence of obviousness and the burden should be on the patent holder to demonstrate it's non-obviousness. If the patent is still ruled non-obvious, the independent inventor gets a reduce rate on the mandatory license fee.
6. Increase the number of challenges to patent validity based on form. A person "skilled in the art" should be able to accurately re-create a patent soley from the patent application. Expert testimony to the contrary should be a major blow against the validity of a patent.
7. Patent protection cannot be claimed on something that would be wholy protected by other IP law. No storyline patents, because any implementation of your storyline would be protected by copyright. Most software patents go away for the same reason. Patented hardware that required software to run is still okay, because the copyright covers the software and hardware covers the innovation in hardware. This would still allow some business and process patents.

Re:about that...

[mavenguy]

Exactly. The patent grant is a right to exclude others; it confers no inherent right to make, use and sell the invention claimed in the patent to the patentee.

A common scenario is: A gets a patent for foo, not coevered by any preexisting patent; B subsequently gets a patent for foobar, where foobbar is covered by A's claims; B can't make sell or use foobar without cutting a deal with A. On the other hand, A can't make use or sell foobar without cutting a deal with B, although A can make sell or use an improved foojr which is not covered by B's claims. A's patent is said to dominate B's patent.

Important points

[Dekortage]

The points that are most valuable (IMHO):

• "Some pledged patents are of little or no value." Right. Primarily, IBM (and others) gain some PR joy by releasing these patents either shortly before they expire, or namelessly in a group so the statistic (more than 500!) sounds better.
  .
  
• "So far the quantities of patents involved have been negligible compared to the total number of issued software patents, and even to the number held by the "generous donors." ...Richard Stallman likens software patents to mines in a park: If there are 90,000 mines in the park instead of 100,000, it's still far from being a safe place to walk." Right. Of course, it begs the question: how many of the 90,000 are actually dangerous? Sure, there are zillions of software patents out there, but how many of them are actually desirable to anyone else?
  .
  

The real question is, how do you reward software ingenuity and creativity if you cannot patent something? Is it enough to make money? That's somewhat meaningless in the OSS community, where fame/notoriety/goodwill may be more important.

Re:Important points

[mrchaotica]

The real question is, how do you reward software ingenuity and creativity if you cannot patent something?

You answered your own question:

That's somewhat meaningless in the OSS community, where fame/notoriety/goodwill may be more important.

Software patents are harmful because MORE ingenuity and creativity happens WITHOUT them!

That's quite a statement

[LaughingCoder]

In a perfect democracy, software patents would already be history.

What could be the reasoning behind this statement? If a perfect democracy means that the issue would be put up to a vote, with the majority opinion carrying the day, I'm not quite as sure as you that software patents would be history. Consider all those people who have a vested interest in maintaining the status quo - we know how they would vote. Now consider the software developers themselves (a tiny demographic) - I would guess that most would vote to abolish software patents, but some (maybe even many) would vote to keep them in place (after all, they write code and may not want others to use it freely). That leaves the big blob of people who know nothing about the issue. How would they vote? I would suggest they would be easily swayed by "campaign" advertising. Now, who has the money to run the campaign - the ones with the vested interest or the software developers?

Now perhaps you believe that a perfect democracy does not leave room for campaigning or advertising to sway opinions. If that were the case, given the large unwashed mass's lack of understanding of the issue one would have to assume their vote would split 50/50. So, in the end I don't see a perfect democracy changing anything.

Re:That's quite a statement

[Anonymous Coward]

perfect democracy requires educated people

Re:That's quite a statement

[Anonymous Coward]

I think "perfect democracy" implies that ALL voters are well informed, completely understand the subject being voted on, and vote appropriately to their beliefs and convictions (i.e. not randomly or through coersion).

Obviously, this is impossible, but the commentary was using it as a rhetorical example anyways.

keep em

[gronofer]

I hope software patents stay around for a while, in the USA that is, simply for the fine job they are doing in discrediting the entire concept of patents. A few more years of this madness and it will be ripe for abolition.

Public Patents

[Doc Ruby]

Seems to me that a patent pool that accepts patents under a license obligating the pool not to enforce the patent, and offering anyone a free, unrestricted license to use the patent, is harmless. It's also indistinguishable from "public domain" in operation, but has the valuable bonus of an interested party which can actively fight others who try to privatize the patented IP. The public domain is a great legal principle, but the economics fail to protect the public - "tragedy of the commons".

Funding the "public patent" pool is a challenge, but a sufficiently diversified and pushy pool with lots of profitable licenses can probably pressure "association members" for enough money to operate. Or sell "value added services", like IP legal advice and "IP market info", like licensing activity. Maybe just a virtual organization, cheap in normal operation, that pulls dues from licensees only when they vote to challenge a rival IP claim to their free patent. If legal, possibly after the fact, when someone licenses a patent that had meanwhile been conflicted by a new, private patent. The economics of that operation might see a "reverse claim jumping" industry, where people spot unlicensed public patents in conflict with newer private patents. They license the public patent, then fund the suit against the private rival, which seizes the private income for the pool, compensating the new public licensee.

The power of this way of thinking, a real libertarian method for fighting private IP hoarders, offers a lot of new operations in the public interest, entirely consistent with private capitalism, while excluding monopolism. Let the good times roll!

Re:Public Patents

[Elektroschock]

"Seems to me that a patent pool that accepts patents under a license obligating the pool not to enforce the patent, and offering anyone a free, unrestricted license to use the patent, is harmless. "

In fact it means that the patent system makes no sense because the situation pre-patent system is regenerated. So all these patents pooled just account for transaction costs.

The principle of grace.

Re:Public Patents

[Anonymous Coward]

thats like saying a country club is better than a park because it only allows members in.

While true, what happens when you get kicked out as an undesirable?

The point of the "commons" is that anyone can use it, anyone. If you are not willing to have every party stand on even ground, then you don't really beleive in fair play.

Re:Public Patents

[sydb]

It's also indistinguishable from "public domain" in operation, but has the valuable bonus of an interested party which can actively fight others who try to privatize the patented IP.

How is an "interested party" the bonus? Why can't the public domain have interested parties?

Surely the bonus is simply that if someone else comes along and tries to get a patent, or does in fact get a patent, you can challenge their act with a straightforward legal force (without having to build a prior art case), because you already have a patent. It takes more than having an "interested party" to create legal force. (It takes more than a patent too, I'm sure money helps.)

Re:Public Patents

[Doc Ruby]

No, it's like saying that when all open land can be staked out as parks, opening a private park to the public is a radical act that does what a park does. The government is supposed to protect the public domain from infringement by encroaching patenters, but it doesn't. It doesn't even fix the broken patent system that costs corporations so much. Expecting the government to fix it is a pipe dream. So we can use the existing system to make some gains. The public patent pools I described would also be the best funders and organizers of patent reform. In the alternatives we've got, the only active one is the status quo. So I suggest a working alternative that can actually produce the results we want.

Re:Public Patents

[Doc Ruby]

Because the public domain doesn't have sufficient interested parties. This isn't a theoretical legal or political discussion. This is a specific strategy discussion on how best to protect our rights. I'd like a "benevolent dictator", a "philosopher king", but I'm not waiting on one. Patents protect a holder's right to use the invention, and prohibit others from doing so. The right to use is extremely important, and threatened in a patent vacuum. The prohibition is usually abused in our current system. So an evolution, that doesn't require the politics, legislation, lawyering etc of reinventing the system all at once, is a good alternative. If people had risen to the demands of public domain defense, we wouldn't have to consider the alternative. But we haven't risen, so we must consider the alternative. Otherwise we get stuck with the unacceptable status quo.

Re:Public Patents

[sydb]

How does a person go from being a disinterested contributor to the public domain to being an interested party with a patent? The interest has to come first. Motivation leads to action. So would-be patent holders are already interested parties. Just because you protest that this "isn't a theoretical legal or political discussion" doesn't mean that you can just post any old crap without thinking and claim it's right.

The legal effect of the patent is the "bonus" of obtaining a patent. The interest of the "interested party" is what might lead a patent to be applied for in the first place.

Re:Public Patents

[Doc Ruby]

No, the "interest" is the practical interest, the stake held. It's not an emotional attitude. That's what I mean by "this is a specific strategy discussion on how best to protect our rights", the very next sentence. What's the point of selectively quoting me back to myself, and calling my perfectly reasonable post "crap", when the only crap is your attempt to deny my simple, clear explanation? If you think all that is at work in intellectual property is one's mental "interest", then it it you who is posting crap without thinking - and not just any old crap, but just the most selfserving denial crap. So stop posing as someone qualified to talk about even the less useful legal or political discussions. Come back sometime when you can at least disagree with some semblence of credibility, and preferably with something substantial to say as an alternative.

Re:Public Patents

[sydb]

But it's not having something "at stake" that matters! It's being able to do something to protect that stake, i.e. wielding the legal power of the patent.

That's why I said it's not the "interest" that counts, it's the patent's legal effect!

Your argument is that a patent holder's interest or stake is the significant factor. It's not! The significant factor is that the patent holder can do something about transgressions, with weight of law.

As for the rest of your post:

The public domain is a great legal principle, but the economics fail to protect the public - "tragedy of the commons".

What has this issue got to do with this? I don't see any connection. Explain what you mean by "the economics fail to protect the public". You simply throw this into your post with no supporting argument, as if it were to be taken for granted.

You carry on in a starry-eyed, rambling manner full of "probably"s, "might"s, "possibly"s and wild speculation. Then you finish by proclaiming that buying in to the patent system en masse is a "a real libertarian method for fighting private IP hoarders"!!

I agree with your apparent aims (protecting the pool, and process, of freely shared knowledge) and it's great that you are passionate about them. But your post is simply not coherent.

Public Domain and GPL

[mopslik]

This year, we've seen a variety of initiatives by companies that "donated" patents to "protect" open source, and organizations like the OSDL and the Open Invention Network now try to pool such patent pledges.

Wouldn't it be more effective, then, to divert our focus away from spreading publicity for these pro-OSS patent groups, and to try to persuade these companies to release their patents into the public domain for all to use (or in the case where the corporation does not wish for commercial reuse of their patents, to license them under a GPL-style license)? Like the poster, I'd be wary of trusting anyone that simply said "we promise we won't sue".

Of course, this assumes that the PTO/courts/etc. agree that the public domain release constitutes prior art.

it may not solve the problem of software patents

[ChipMonk]

But it does bring the issue out for more open debate. Given the WIPO's attempts to dissuade public debate, that can't be a bad thing.

The patent pool's might not be the right idea ...

[Anonymous Coward]

... because they have all these limitations applied by the 'donators'.

One single nasty patent (think EOLAS, think Forgent) may be enough. Just license it only to software that is licensed under the GPL, and enforce that using a horde of lawyers ... and then some action whould have need to be taken, otherwise GPL spreads like bird flu.

A solution to consider

[Teppy]

What about adding a clause like this to both LGPL 3 and GPL 3:

By using this software you agree never to initiate a software patent lawsuit against any person or company. If you do initiate such a lawsuit, the license fee is $1M per year, retroactively, and you are defined as "aggressive". There is one exception to this rule: Anyone may initiate software patent lawsuits against others who are aggressive.

This has the effect of even making life difficult for litigation companies: As more and more software includes at least LGPL code, over time they would have to run their companies without the use of software of any type.

Re:A solution to consider

[inverselimit]

I like this. Of course, as a coder, you are free to include this phrase on your own work. Let's start doing it; I will, from today.

Re:A solution to consider

[Anonymous Coward]

How about "patently mad" instead of "aggressive" ?

Re:A solution to consider

[Anonymous Coward]

And those who instigate themselves as "aggressive" will have to do so by typing /pvp, which will change the text above their toon from being a pleasant green to a hostile red.

Re:A solution to consider

[booch]

The biggest problem with that is that the GNU GPL doesn't require you to agree to the license in order to use the software. You only have to agree to the license in order to copy, modify, or distribute the program. Why? Because that's all copyright applies to -- copying, modifying, and distributing. Copyright doesn't stop people from reading books -- it stops them from copying books, distributing copies, or distributing modified copies.

Probably a dumb question...

[Zzyzygy]

How would you sue an open source project for patent violation? Suppose there was patented code found in the kernel, who do the litigants go after? Linus? The author of the code?

-Scott

Re:Probably a dumb question...

[wpiman]

SCO went after the users. I don't know if that will prove to be some sort of prescendent or not.

Re:Probably a dumb question...

[joelito_pr]

They'll go after IBM and other high profile contributors

Necessary, but badly executed so far

[inverselimit]

I think some kind of patent pool is necessary, but I want to see it run by the open source types. We should have a foundation which patents methods used in open source software as they come out, then places them in a defensive pool like the ones the corporations use. The licence could be viral: use may use these patents in any project which is open-source, and if you grant the same licence to everyone to use all your software patents. It's a stopgap, but until we get the laws fixed, we need something to prevent innovations developed by the community from being patented after the fact by big companies. I know that means there would be prior art, but since when has that been any impediment to a patent? Microsoft knows that many obvious things, like organizing photos in chronological order, are patentable, and will patent them untill open-source software is crushed. We have to fight back both within the existing legal system, and by changing it.

SW patents do mean shit in China

[denis-The-menace]

SW patents do mean shit in China and in 15-20 years they will be dictating terms because they will have most of the wealth.

All that needs to happen is for one critical app to be created in China that many corps want/need but couldn't create due to SW patents. When that app is sold/licensed/bartered around the world, all the SW patents in the world won't stop it.

Don't believe me, look at the Blackberry Patent suit. In the US, even if RIM looses, the US government will still be *allowed* to buy and used blackberries in the US. Patents means nothing if the need/want is there.

patent pools

[Anonymous Coward]

"When cross-licensing or pooling arrangements are mechanisms to accomplish naked price fixing or market division, they are subject to challenge under the per se rule. See United States v. New Wrinkle, Inc., 342 U.S. 371 (1952) (price fixing)"; Antitrust Guidelines for the Licensing of Intellectual Property, U.S. Department of Justice and the Federal Trade Commission (1995)

"[T]he right to exclude others from profiting by the patented invention" is "the essence" of the patent grant." Dawson Chem. Co. v. Rohm & Haas Co., 448 U.S. 176, 215 (1980)

Waiving the right to exclude is the equivalent of fixing the price at "no charge". Pooling patents at "no charge" is price fixing.

"That would be no more permissible than a contract between a copyright owner and one who has no copyright, or a contract between two copyright owners or patentees, to restrain the competitive distribution of the copyrighted or patented articles in the open market. Interstate Circuit, Inc., v. United States, supra, 306 U.S. page 230, 59 S.Ct. page 476. As stated in Standard Sanitary Mfg. Co. v. United States, supra, 226 U.S. page 49, 33 S.Ct. page 15, rights conferred by patents 'do not give any more than other rights a universal license against positive prohibitions. The Sherman law is a limitation of rights, rights which may be pushed to evil consequences, and therefore restrained.' "; UNITED STATES v. MASONITE CORPORATION, 316 U.S. 265 (1942)

Re:SW patents don't mean shit in China

[denis-The-menace]

BTW: I meant don't mean shit.

Sigh.... Here We Go Again

[mpapet]

This is a favorite topic on ./ and I agree, as most everyone does on the broad issues.

But, I'm personally tired of the hand-wringing, rah-rah, something-must-be-done, generally lacking in any sort of content items like this. Here are some options:

1. Slashdot makes a new category: Things most viewers agree on. You can put the Evil Empire, Linux is Great and Patents are Bad stories just like this one in this category. It will be a popular category.

2. Do something. How about learning how to avoid patent entanglement? If your method is different than the patent, then when the lawyers come knocking, can you turn them away? Not like Kryptonite to Superman, but they will have to back down. How about learning how to defeat a patent? How about a little local anti-patent advocacy?

3. How about a patent map? There are plenty of smart programmers here, come up with a way to make a patent directory. It's nowhere near easy, but I'm sure there's quite a few people smart enough to get *something* going.

C'mon people do something about it.

Re:Sigh.... Here We Go Again

[malraid]

The problem with patents is that it's a bit like project mayhem:
"The first rule of project mayhem is: You do not ask any questions.
The second rule of project mayhem is: You do not ask any questions."
The simple act of knowing about a patent can be dangerous. Sad but true.

Re:Sigh.... Here We Go Again

[thebdj]

This is so true it is not even funny. These kind of stories bring out the know-it-all zealots who are in fact the know-nothing zealots. Simply put, I have never met a great many people more misinformed on an issue then the /. community is in regards to patents and patent law. Not only that but they are completely ignorant to the facts and not willing to have a true discussion on the topic and are more willing to spend countless ages writing posts that do nothing but say the system is broken...it doesn't work...cause Bob over there says it doesn't.

The simple fact is most the readers have never taken the time to find out about topics, and to decide that it is or is not a problem. If memory serves me, you can technically say there are two types of software patents. Type 1 is the business method implemented on a machine, and these are quite possibly the worst kind. The second is an actual process designed to run for some real purpose in a software function. Now the problem with rejecting the ideas of number 2 is that a great many problems can be solved in both a hardware and a software enviroment. So if I designed a system that took this logic circuit and then took that output to some memory device or other logic based circuit and that perform task A it would be patentable. However, I would not be able to patent the same implementation (under everyones arguments) in the software world.

One last little note. Stop bitching at the USPTO or your Senate or whoever for Software and Business Method patents. You know why? Because their inclusion was created by a SCOTUS ruling. In which they decided just about anything created by man can be patented. The USPTO has tried rather valiently to try to stem these patents as much as possible, but there is only so much they can do with the money and resources available to them (because Congress keeps stealing their money).

Trust me there are plenty of things that can be done to improve the patent system, I understand this. There are plenty of people opposed to software patents (albeit Microsoft themselves might actually hate them in some deep dark secret memo because most their software patents are of the anti-troll variety).

If you really want to get your hands dirty, I have a few recommendations for the whiners who want to fix things. First, if you have an engineering degree, go work at the PTO and use your vast knowledge of all this existent prior art to reject as many of these patents as you see fit (within the letter of the law). Second, go to law school and become a patent attorney and then fight all these "bad" patents you believe are not legitimate. Or Third, go into politics and try to make the reforms to law from within Congress. I get tired of people screaming at the top of their lungs about problems but not willing to take any sort of action in order to actually work to fix the problem.

Re:Sigh.... Here We Go Again

[Anonymous Coward]

I get tired of people screaming at the top of their lungs about problems but not willing to take any sort of action in order to actually work to fix the problem.

And you, my friend, should probably solve you problem by a simple method of quit reading Slashdot.

Destroying the system isn't the answer.

[CDarklock]

Let me provide you a couple of scenarios.

Scenario one: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone pops up with a patent and says I have to pay royalties.

Scenario two: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone else steals my idea for their own software and releases a competing product.

Both of these scenarios are clearly wrong, but no patent plan thus far has dealt with any way to prevent both cases. Overuse of software patents creates the first scenario, while lack of software patents creates the second.

What most bothers me is that the people screaming "no software patents" are never going to have one ANYWAY. They are not brilliant original thinkers, they are primarily wage slaves and open source advocates; they want the ability to grab and use *anything* that looks like it might fit when they have to build something. There is nothing wrong with that; brilliant original thinkers are rare, and while we would all like to believe that group includes us, we are all probably wrong.

But some of us really do have a significant potential to create something that takes a long time to invent, but not much time at all to copy. I have a product in development right now that is absolutely revolutionary; nothing out there is even remotely close to it, and I think my target market is going to just go insane wanting it once they see how great it is. (I could be wrong, and... as I mentioned above... I probably am.) But once you see the product, you know exactly how it works. If you have a reasonable competence in the appropriate field, you could build it yourself. I spent four years making it out of nothing, but it would take a competitor maybe a month to bootleg it.

That's why patents exist. A patent is designed to protect *exactly* this situation. The problem is that they are not being used this way.

My solution to the problem is simple: patents should cost a percentage of what they earn the owner. Not a huge percentage; something tiny. The patent owner could simply list all of his licensees and the gross revenue they generated, and pay (say) 20% of his most profitable year over the life of the patent. Each year, he simply calculates his 20% and subtracts what he's already paid.

Essentially, the protection of the patent gives the company which owns it a certain monopoly power, which inevitably raises the market price. Since the company will therefore make more money over the life of the patent, the government should charge some of that revenue back. Over the twenty years that patent is in force, you'll pay between one and twenty percent of your revenue, depending on how lasting and enduring your idea is. If you have a novel little flash-in-the-pan idea, you pay closer to twenty. If you have a brilliant and useful idea, you pay closer to one. This gives the inventor a form of automatic patent fee relief when his invention is truly of lasting value to the world.

Filing fees can stay, so people don't file patents for no good reason, but we should probably reduce them enough for people to *afford* a patent. Between the search and the application and the filing fee and all the attorney fees along the way, getting a patent COSTS, and I'm not exactly struggling. The old man in the basement with a fantastic idea can't even *begin* to think about getting a patent, and that's just plain wrong.

Add to this a burden on patent holders to demonstrate probable intent to infringe before prosecuting infringement... and the patent system is pretty much fixed. I don't think that's a massive change. I don't think anyone who really deserves a patent on something will complain about it.

What we really want from the patent system is protection for useful inventions from inventors, not for endless strings of crap from major corporations. Make the endless strings of crap pay more, and the corporations will be less interested in patenting them. Place a r

Re:Destroying the system isn't the answer.

[Triple Click]

Why not just enforce copyright laws?

Re:Destroying the system isn't the answer.

[scooviduvoctagon]

"Scenario two: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone else steals my idea for their own software and releases a competing product."

The concept that an idea can be "stolen" is quite unfortunate.

To demonstrate, imagine if you will some sort of cosmic Patent law which prevented organisms from "stealing each others ideas" ... from cell division, to using tools. The universe would have never passed Go.

Patent law is a purely artificial construct. It exists at all only because it is able to rest on existing artificial constructs, such as the State.

The State is an apparatus of force which uses its accumulated, centralized power to maintain its own monolopies.

A true free market would be better for society and the human race as whole... if one was actualy concerned with mankind rather than one's own temporary little life and whatever extra profit one might accumulate through the use false laws.

Competition is good. Information wants to be free.

Re:Destroying the system isn't the answer.

[Anonymous Coward]

Your claims that people opposed to software patents are never going to 'invent' anything are completely unfounded. There are many SME's, academics and engineers (some in the employ of large pro-swpat multinationals) who are opposed to patents on computer programs. Your comment betrays a total lack of understanding about the nature of patents on software and why these patents are potentially so damaging to society.

Once upon a time, even the USPTO could see that patents were not suitable protection for literary works such as computer programs. There is one flawed ruling that opened the floodgates for these patents and it needs to be challenged.

Re:Destroying the system isn't the answer.

[Husgaard]

Scenario one: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone pops up with a patent and says I have to pay royalties.

Scenario two: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone else steals my idea for their own software and releases a competing product.

Both of these scenarios are clearly wrong, but no patent plan thus far has dealt with any way to prevent both cases. Overuse of software patents creates the first scenario, while lack of software patents creates the second.

You forget the effect of copright in scenario two. Somebody else cannot simply steal your software, so they have to reverse engineer it and create their own software with your idea.

Because of the time it takes to get a new piece of software on the market you will be about two years ahead of your competition.

Without software patents you cannot simply lean back and collect patent royalties for the next 20 years. To stay ahead of your competition you will be forced to keep on innovating.

So the lack of software patents actually promotes more innovation.

This has also been shown in imperical research (pdf warning).

Re:Destroying the system isn't the answer.

[Halo1]

Scenario one: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone pops up with a patent and says I have to pay royalties.

Scenario two: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone else steals my idea for their own software and releases a competing product.

You can't "steal" something which is no one's property. As of yet, even WIPO and WTO do not recognise "ideas" as someone's property.

Both of these scenarios are clearly wrong, but no patent plan thus far has dealt with any way to prevent both cases. Overuse of software patents creates the first scenario, while lack of software patents creates the second.

The second scenario is not wrong at all. It's the foundation of free competition in the free market economy. Patents are government-mandated monopolies/interference which disturb the free market, and only if their overall effects are positive (i.e., the reduction in competition is more than compensated by an increase in innovation and other benefits to society), then you should apply them.

Your "brilliant thinkers" rant is quite amusing.

Concerning your simple solution to all the problems with (software) patents: people have been saying for decades already that all problems with the patent system can be solved by just doing this or that (better application of novelty/non-obviousness requirements, more funding of patent offices, better training of patent examiners, patent pools, ...).

The fact is however that today, things are as bad as ever. And that's not just my opinion, but that of Dr David Martin, CEO of M-CAM, a company specialised in establishing the value of patents and technology transfers.

Until that whole mess is sorted out, the patent system is costing the software economy millions and millions of dollars in patent application fees, costs of setting up licensing deals, fighting lawsuits (have a look at the last slide) etc.

So I suggest you with your brilliant mind first work out the economic model and studies that shows that with your adjustments the patent system is in fact overall beneficial (as opposed to the current situation), then get it turned into a law in the US, that we see whether it in fact works in practice and that only then we start with the legalisation of software patents in Europe under the same regime.

Until then, I prefer not to have that whole administrative and juridical burden imposed on the European software market. And I don't see why people shouldn't argue for removing the burden in the US as well.

Re:Destroying the system isn't the answer.

[Halo1]

You forget the effect of copright in scenario two. Somebody else cannot simply steal your software, so they have to reverse engineer it and create their own software with your idea.

At least in Europe, even reverse engineering is forbidden by copyright law, except for the purpose of making software interoperable with another product.

Re:Destroying the system isn't the answer.

[Anonymous Coward]

You forget the effect of copright in scenario two. Somebody else cannot simply steal your software, so they have to reverse engineer it and create their own software with your idea.

That's untrue. According to the parent poster, it is obvious how the software works once you use it, so there's no need for reverse engineering. This is the case with lots of things. Most, actually.

Because of the time it takes to get a new piece of software on the market you will be about two years ahead of your competition.

Don't be ridiculous. If it's simple to implement it could have clones popping up in weeks. The parent poster's estimation is a month or two, and I don't see how you could possibly be better suited to estimate that than he is, given that he's the designer of the software.

Without software patents you cannot simply lean back and collect patent royalties for the next 20 years. To stay ahead of your competition you will be forced to keep on innovating.

Maybe. Many people have just one bright idea. If their market share gets gobbled up by $big_software_company who simply cloned their work, they're out of luck. There's also, of course, the risk patents were primarily designed to prevent: that the inventor decides not to pursue the idea at all of fear of being outmanouvered in the market place, and stays at his day job. Then the world will never see it in the first place. That's not a happy outcome.

So the lack of software patents actually promotes more innovation. This has also been shown in imperical research (pdf warning).

Interesting. I'm not certain I believe in their methodology, but interesting nonetheless.

Btw, it's "empirical".

Re:Destroying the system isn't the answer.

[lightweave]

What most bothers me is that the people screaming "no software patents" are never going to have one ANYWAY. They are not brilliant original thinkers, they are primarily wage slaves and open source advocates; they want the ability to grab and use *anything* that looks like it might fit when they have to build something. There is nothing wrong with that; brilliant original thinkers are rare, and while we would all like to believe that group includes us, we are all probably wrong.

Your argument is flawed here. Just because someone doesn't file a patent, it doesn't mean that he is not a brilliant thinker. It just may mean that he has a more reasonable view on what actually constitutes a 'brillian idea'. What you promote with your statement is that somebody who files a patent has to be a brilliant thinker also, which is obviously wrong. Because the only thing that a patent shows is that the author THOUGHT it might be worth patenting. A small example: I learned assembly programming a long time ago, before MS was founded or at least known enough to the masses. There exists a patent on code injection, which means that you replace some parts of the existing code, replace it with your own code, and then execute the original code that you replaced. the purpose of this technique is that you can extend or do some stunts with software where you only have the binaries for and no sourcecode. Now this idea is really 'brilliant' in fact it seems so brilliant that I found just with a cursory search about 6 patents from different companies, including Microsoft, IBM and other big players. Each of these patents uses this exact same pattern, but for different purposes and the patents are distributed over about 10-15 years when they were granted. To make it even more interesting: I came up with this 'brilliant' idea myself long ago, without knowing that this was such a brilliant idea that I could put a patent on it. I fixed a buggy software for a friend where the vendor was no longer available with this. In fact I would expect ANY reasonable assembly language programmer to come up with this idea, because it simply is the most obvious route to go. It's so 'brilliant' that this is also a common technique when cracking protections as well, because this is just another application for this. So much for 'brilliant thinkers' and their relation to patents. I concede that a programming technique like inventing a new compression based on some obscure mathematical algorithm, requires some thinking and is not obvious to everybody, but these are most likely NOT the majority of the 'brilliant' patents you seem to make them to be.

Re:Destroying the system isn't the answer.

[Anonymous Coward]

You need to take a refresher course in logic 101. The structure of his argument is very simple, yet you fail to grasp it.

Your argument is flawed here. Just because someone doesn't file a patent, it doesn't mean that he is not a brilliant thinker.

True, but irrelevant. Just because not all brilliant thinkers want to file patents that doesn't mean there aren't brilliant thinkers who want to. The parent posters claim is only that some brilliant thinkers would be dissuaded from pursuing their idea if there wasn't a patent system, not that all would.

What you promote with your statement is that somebody who files a patent has to be a brilliant thinker also, which is obviously wrong.

False. He's saying that some brilliant thinkers want to patent their ideas, which is claim entirely separate from what you're talking about. He said nothing about everyone who files for patents are brilliant thinkers.

Independent Invention Defense & Others

[cheesedog]

#1 is good, but #2 is problematic -- it shifts the 'power to patent' further in favor of the large corporation and further away from the small startup or independent inventor.

There are some really good reforms that could take place, short of giving up the goal of abolishing the patent system altogether. A list of a few is given at this post on China's entry into tighter patent law. My favorite? The Independent Invention Defense.

The assumption of a perfect democracy...

[FlorianMueller]

...relates to a representative democracy, which is how most Western democracies work, for the most part (there are exceptions like the cantons of Switzerland). Some of what you say refers to a referendum, and that would be direct democracy.

In a representative democracy, the elected representatives of the people should represent the interests of their electorate. On a specialized issue such as IP policy, that would include conclusions from the results of independent research as well as listening to a representative selection of the people affected by a measure, not just to the lobbyists of a few large corporations and the industry associations that they effectively control.

That reminds me.

[Anonymous Coward]

I need to add an explicit disclaimer to the licenses in my open source project about who is responsible for licensing any patents my stuff will likely end up infringing. So the answer to your question is it won't be me. Since the patents in question are applied for or owned by IBM, it will be interesting to see if IBM will sue for patent infringement by an open source project.

Thoughts are free...

[digitaldc]

...thoughts typed out in code are not?
You can copy each other's software and modify it as you please as long as you share the wealth / credit - but this is something that is inherently contradictory to hard-core capitalism. In a system where you have lawyers representing lawyers over who owns what and when, it is really hard to get around patents and the greed that inevetibly comes with them. (see http://www.thecorporation.com/ or http://www.rottentomatoes.com/m/corporation/) Patent pools may only lead to more litigation about how they were used or abused.

From the Creative Commons licensing restrictions under 4C:
If you distribute, publicly display, publicly perform, or publicly digitally perform the Work or any Derivative Works or Collective Works, You must keep intact all copyright notices for the Work and give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., "French translation of the Work by Original Author," or "Screenplay based on original Work by Original Author"). Such credit may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, at a minimum such credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit.

Stifling innovation is not what the IT world needs or wants. Would I even be able to write this posting if someone had patented comment fields, html code and text-boxes? The internet is a perfect example of why you should not patent everything, simply because it will lead to the greater good of the community. After all, if you are worth billions of dollars and have acheived many things in your life, why do you need to keep making tons of money by patenting anything with a potential profit? It is the ruthless capitalism game you are playing, the rules that dictate how you MUST play it, and the mind-set it creates while playing the game.

HA!

[scooviduvoctagon]

"[...]the Linux kernel (which is only a small part of a standard Linux configuration)."

... the mind reels.

Certainly, the Human brain is only a small part of a standard Human configuration.

Kinda reminds me of a Jack Handy quote: "The face of a child can say it all, especially the mouth part of the face.

But for what reason?

[NCraig]

It seems clear that patent pools are merely a sleight of hand performed by inevitably pro-patent organizations to gain the favor of the open source community.

Yet I still can't grasp what exactly is wrong with software patents.

Why should software companies be unallowed to protect their means and methods of innovation? Obvious patents are always wrong and unfortunately are granted every day. This is a major malfunction of the USPTO that must be addressed. However, the design of a large software system is hardly a simple algorithm. Every industry recognizes that processes, recipies, and systems may be patented. So what is it that makes software any different?

I understand that it is the dream of the "open" movement to turn IT into a service industry, however I believe this would have unfortunate consequences for both producers and consumers. Without the ability to shield innovation through patents, the software industry would have less reason to research and advance, and less means to support its constituents. It is admirable that developers worldwide embrace the open source ethos. But it is reckless to assume that all developers share those ideals.

I have read ESR's Cathedral and Stallman's Software Should Not Have Owners and find them optimistic at best. Mr. Muller is cast from the same mold. From NoSoftwarePatents.com:

Patents on software restrict the freedom of expression, and that freedom is too important to be sacrificed to the "patent mafia" and big industry lobbyism. There are some who say that software is "engineered". In practice, software is written. A computer program consists of words, numbers, and mathematical symbols.

This is why obvious things (such as simple algorithms) should not be patentable. Software is indeed "written," however software systems follow a larger vision. The turning of a screw is not patentable, but a method of connecting parts (turn by turn by turn) to create a greater whole is.

I know this post is anathema to the local mindset, but I hope to get one or two serious responses =/.

Re:But for what reason?

[squiggleslash]

Patents are inherently unfair, worse, in many ways, than a lottery. In a lottery, the "winner" walks off without major damage to the losers, who all knew that someone would walk off with the cash before they got involved. In patents, the winner actively harms the losers by far more than a dollar, preventing them from producing and selling products if the winner desires, and without the losers ever realising they were playing a game to begin with.

Remember: the key feature of a patent, the thing that sets it apart from copyrights, is that it's possible to infringe even though you were never aware of the patent, never aware of the patent holder's development or design before you designed yours, even you you, yourself, without help from anyone, developed the product that ended up infringing. You do not have to copy something to infringe. You can independently invent something, and because it turns out to be a similar design to a patented design you had never heard of, you will be infringing.

That's why they're unfair. Why do we have them? Because sometimes the "race" is necessary to spur invention. But in the midst of implementing that principle, we forgot why we were implementing them and thought, wrongly, that they're fair after all, that it's legitimate to apply them to practically anything. We made a mistake in letting patents be universal across inventions, rather than restricting them to specific inventions society had deemed, through elected representatives or otherwise, especially important and urgent. We made a huge mistake in letting patents transcend inventions and go into programming and business practices coupled with that universality.

Patents need to be thrown out. If we want to reward inventors using a "First to invent" scheme, let's do it fairly, and introduce competitions and bonuses for specific, named, inventions that are generally wanted. The X-Prize was a reasonable idea. An eighteen-year monopoly on space wouldn't be. Those who promote patents think the latter would be more legitimate, reasonable, and required, than the former.

Re:But for what reason?

[Anonymous Coward]

"Yet I still can't grasp what exactly is wrong with software patents."

You sir have never developed code for any length of time. If you have you would clearly understand that _most_ software patents are the equivalent of patenting "how to turn a screw with a screwdriver". Stealth patents are even worse because they are so generic they don't just cover a philips, or common screwdriver, but _any_ method of turning a object so that it's implanted into something else, oh, and usually they are retroactive, and since they are _so_ broad they bound to cover anything you are doing.

"Fools and their money are soon parted" - PT Barnum

Re:But for what reason?

[JSBiff]

Well, for one thing, software creators already have the protections of copyright. That is, really, a significant protection. Does it mean no one can clone your software without infringing? No, of course not.

Fundamentally, patents protect that part of society which least needs protections. There are different kind of practical protections on software. There is a concept in economics, which applies here, called barriers to entry. That is, how difficult is it to enter a market?

Consider any non-trivial piece of software (which seems to be what you think should be patentable - you say that simple, obvious algorithms shouldn't be patentable). Even to clone a piece of software would take some considerable investment. Some software is easier to clone than other software, because the software itself might be simpler, and more obvious how to clone it. But, in addition to copyright, you still have to deal with the issue of actually figuring out the functionality of software, and be able to reproduce it, which in many cases, would require a lot of work. In the meantime, your competition, that you are trying to rip-off, potentially is continue to develop the product with more features, new functionality, etc, and so they are staying a step ahead of you.

Now, the theory goes that patents are supposed to protect the small inventor, who doesn't have the resources to protect his invention from being ripped off by a large, deep-pockets company that can overcome that particular barrier to entry. Someone like a Microsoft or IBM, if they like your product, and decide not to buy it outright, has the resources to reverse engineer it, and redevelop it without infringing your copyright.

But who do we see hold the majority of software patents? Large software companies. And so, the whole system is turned on it's head. Companies with a lot of resources, who can out-market (spending lots of money on ad campaigns, etc), out-lobby, and out-patent (patents are very expensive, and so only people with a lot of money to burn on patents can afford to get a lot of patents) most of the small and mid-size players.

There is another fundamental problem with patents. Software patents are basically giving people a monopoly on using tools (development tools in this case) the way the tools were designed to be used, by *other people*, in many cases. Take for example the Amazon.com infamous one-click patent. The reason so many people were in an uproar about it is that, fundamentally, they were using html and cgi the way html and cgi were designed to be used (that is, present users with a form, and when the user clicks on something on that form, the form is processed and some software is triggered to run on the server). Too many of the software patents that are out there simply cover people using tools invented by other people, the way the tool inventors intended the tools to be used (granted, the tool inventors might not have conceived of every possible, specific use of the tool, but they designed it to allow this variety of things to be done).

Finally, it's arguable whether the first person/company to implement a specific idea should have a monopoly on that idea, when many others may have had the same idea, and just come to market a few months later. Most of the times, ideas are not that original - but specific implementations might be. However, software patents have been allowed to become ever more and more generic, to the point where software patents have created a true minefield for software developers. Far too many 'simple algorithms' have been patented, and obvious ideas have been patented, because the patent office doesn't really have the ability to correctly arbitrate what should and should not be patentable.

And so, now we find ourselves in a situation where there are a lot of patents that need to be litigated to be declared invalid, but the sheer number of patents will quickly cause the cost of litigating to outweigh any 'benefit' of the patent concept. That is, the overhead costs of putting up with softwar

Re:But for what reason?

[A non-mouse Cow Herd]

Yet I still can't grasp what exactly is wrong with software patents.

If you believe the fundamental purpose of the patent system is to promote innovation for the advancement of society as a whole, then it should be obvious that not only does the current system not work, but it does the exact opposite. This is not unique to software patents, but they are one of the grosser examples, and started us down the slippery slope which has lead to business model patents and even storyline patents

If you think the purpose of patents is to enrich a few, at the expense of innovation and the population at large, then it obviously works.

Without the ability to shield innovation through patents, the software industry would have less reason to research and advance, and less means to support its constituents.

This is demonstrably false. Look at all the software innovation which happened before software was patentable. Now stop and think if every one of the technologies underlying modern computers and the Internet had been patented. Do you really think that, if every bit of software had been patented since 1960, there would have been more innovation ? The the PC and the Internet would be better than they are today ?

Tim Berners-Lee recently posed the question (paraphrased) "what would the Internet be like today if I had patented http ?"

( I can't find the exact quote, but here's a link that conveys the general idea http://www.oreillynet.com/pub/wlg/1390 )

I hope it is obvious that the end result would have been something much less useful than what we have now.

Or how about the point of view of another software innovator John Carmack

Actually, I do honestly believe the system is inherently flawed, not just that it is administered poorly.

Damn near every product or idea of value has clear, traceable roots to things that have gone before, which a lawyer can easily argue are within claims filed with patents. If every innovation was protected by patent, and every product actually paid full heed to all the patents that could lay claim to it, you would basically not be able to build anything without spending far, far more time tracking down who you need to pay licensing fees to than you spend producing things of value. If a law looks absurd when applied with perfect enforcement, it isn't a good law.

Relatively few great things would disappear without patent protection. Would I stop trying to come up with innovative software? Would Intel stop trying to come up with innovative hardware? There are probably some valid cases in drug research, but I contend that most of what drives the economy takes a net negative effect from the patent system. For large companies, it is a parasitic legal cost to keep a competitive set of trading cards. For small companies, it is a sword of Damoclese hanging over their heads.

John Carmack

source: http://lists.erps.org/archives/erps-list/msg05386. shtml

Now stop and think. The above or two people who are the quintessential 'lone innovators' that the patent system is supposed to protect.

Re:But for what reason?

[NCraig]

Patents need to be thrown out. If we want to reward inventors using a "First to invent" scheme, let's do it fairly, and introduce competitions and bonuses for specific, named, inventions that are generally wanted. The X-Prize was a reasonable idea. An eighteen-year monopoly on space wouldn't be. Those who promote patents think the latter would be more legitimate, reasonable, and required, than the former.

I agree with you that a "race" is helpful in generating innovation. But what did the X-Prize competition really amount to? The only contenders that stood a chance were funded by corporate moguls (Paul Allen in SpaceShipOne's case). Isn't a barrier to entry one of the detriments of patents?

Further, claiming that the patent system is akin to giving the first private venture to space an "eighteen-year monopoly" is a bit excessive. In fact, the X-Prize competition itself resulted in at least one patent application being filed (from this Space.com article):

However, the configuration designed by Scaled Composites for SpaceShipOne is unique with its fuel case and nozzle cantilevered off the main oxidizer tank - forming part of the vehicle's aft fuselage. Rutan has applied for a patent given this new design.

I am not asserting that the patent system is perfect - or even close - but I do believe that it is effective in generating a will to invest the time and resources necessary for even the simplest of modern inventions.

Re:But for what reason?

[NCraig]

But who do we see hold the majority of software patents? Large software companies. And so, the whole system is turned on it's head. Companies with a lot of resources, who can out-market (spending lots of money on ad campaigns, etc), out-lobby, and out-patent (patents are very expensive, and so only people with a lot of money to burn on patents can afford to get a lot of patents) most of the small and mid-size players.

This is by far the most compelling argument against software patents. The only defense I present is as follows: in a capitalistic society, wealth will always congeal around large corporations. This wealth includes all sorts of property, physical and intellectual. Whether or not the system itself is just belongs to another debate.

Take for example the Amazon.com infamous one-click patent. The reason so many people were in an uproar about it is that, fundamentally, they were using html and cgi the way html and cgi were designed to be used (that is, present users with a form, and when the user clicks on something on that form, the form is processed and some software is triggered to run on the server).

The Amazon patent is notably ludicrous, and a few seconds at the USPTO search site will turn up other jokes. To counter, here are two software patents that I believe are valid: one; two. Both software patents relate to larger systems and seem to be innovative solutions to their respective problems (seem to be because I am unfortunately a chemistry dunce).

Finally, it's arguable whether the first person/company to implement a specific idea should have a monopoly on that idea, when many others may have had the same idea, and just come to market a few months later. Most of the times, ideas are not that original - but specific implementations might be.

Patents are intended to encourage people to get out an invent. Suppose you and I simultaneously have the same great idea. I play around with it in my head for a few months. You, on the other hand, work scrupulously in your laboratory, determining a way to turn the idea into reality (and crafting your patent application). Are you not more deserving of the patent than I? Remember, a patent rewards both innovation and hard work.

There are many many patents that have been applied for not for their inherent market value, but simply their value as a stick with which to beat the hell out of your competition, by creating an artificial barrier to entry into a particular market, or into any market.

This is an unequivocal drawback. The advent of ventures formed with the sole intent of gathering and litigating patents is certainly discouraging. Again, I assert that the USPTO needs a major overhaul. I've seen it suggested that only patents that are "acted upon" should be considered valid. This seems to be a reasonable adjustment.

Thank you for taking the time to write such a great post.

Re:But for what reason?

[Anonymous Coward]

The reason software should not be patentable of the difference between exact science and applied science.
Developments in exact science are called discoveries and are not patentable.
Developments in applied science are called inventions and are patentable.
Computer science is a special kind of math, math is entirely exact science.

Like Wearing a Fireman's Suit in an FAE Attack

[Stephen Samuel]

It's like wearing a Fireman's suit in a Fuel Air Explosives explosion.... It'll help, but you're far better off getting rid of (or at least defusing) the bomb.

It doesn't change the fact that software patents (and, probably, most of the recent non software patents, as well) need to go the way of arbitrary search and siezure and star-chamber trials -- but it still helps.

Self funding encourages frivolous patents

[Christian Engstrom]

[...] exponentially increasing fees per year to maintain a patent (proceeds from this being directed back into the patent office to afford better review of the patent applications)

I agree that that idea may appear at first sight to be helpful in raising the quality of patents, but in real life it has the exact opposite effect. And what is worse, it has already been implemented.

Nowadays most patent offices around the world are already "self funded", so the fees do already go back to the patent office. And the proprietor of a patent already has to pay maintenance fees to keep it valid. But this is part of the problem, since it invariably leads to lower and lower standards.

A look at the USPTO fee listUSPTO Fee Schedule explains the underlying math.

The basic application fee for a patent is $300, but you also have to pay a "search fee" of $500 and an "examination fee" of $200, making it a total of $1000 for making an application. But in order to collect that money, the patent office has to do quite a lot of work: set up a file, do an initial formal examination, perform a novelty search, and quite often engage in correspondence with the applicant to sort out various issues. It seems reasonable to assume that initial applications "as such" do not cover their own costs for the patent office.

But once a patent has been granted, nice things start to happen to the patent office's profitability calculations.

At the moment the patent is granted, the proprietor has to pay $1400 in "issuance fee". Then, in order to keep his patent valid, he has to pay maintenance fees at regular intervals. $900 is due at 3.5 years after it was granted, $2,300 due at 7.5 years, and $3,800 due at 11.5 years.

For a patent that is renewed throughout its full term, the post-allowance and maintenance fees add up to $8,400, compared to the $1000 for the initial application.

And the renewal fees are the good part of the patent office business, since the PTO doesn't actually have to do anything for the money, except make a note in the file that the fee has been paid. So for those patent offices around the world that are funded in whole or in part by the fees they collect, there is a direct incentive to let the standards slip to the lowest level they can possibly get away with.

The result can be seen at a patent office near you.

(This post is essentially a repost of a reply I made in another patent discussion a couple of days ago, with some minor changes in the numbers, as I had missed some of the fees in the original post. But the logic remains exactly the same.)

Re:Self funding encourages frivolous patents

[mavenguy]

Well, on the one hand, structuring fees this way rather than collecting everything up front does tend to encourage more filing by lowering the price to enter the game, but, on the other hand, if an issued patent is not "paying off" there is an incentive to let the patent lapse before it's full term is completed. In the US, the concept of maintenance fees was introduced sometime in the 1980's. I don't know what the statistics are concerning how many patents have laspsed, so far, for failure to pay maintenance fees (and were not previously declared invalid or disclaimed under some such duress).

Remember, the more up front the requirements, the more it favors patents only going to the big corporate players, although these days the "basement inventor" is rarely a player. Perhaps the phased approach could be limited to the "small entities" (indiviuals and small businesses).

Umm...

[jhantin]

I'd be more inclined to compare an operating system kernel to the brainstem or spinal cord rather than the whole brain. Low-level functions and all that.

Re:Umm...

[scooviduvoctagon]

"I'd be more inclined to compare an operating system kernel to the brainstem or spinal cord rather than the whole brain. Low-level functions and all that."

Linux is a monolithic kernel, not a micro-kernel.

Stealth Defense

[Anonymous Coward]

Just get OSS into critical areas of the economy, such as DOD (already there), energy, and communications infrastructures. Also get it into some critical level at major companies (Apache?).

This is the non-political solution. Let these companies and government bodies fight the battle for you. They won't want to remove OSS in favor of less-reliable and more costly closed software.

Follow the money!

The time to start dismantling the USPTO is NOW

[pennystinker]

The patent system is intrinsically unfair, and "wrong" (for some appropriate definition of "wrong" that does not mean "right"). It stimulates both unhealthy individual thought as well as destructice social and economic activity.

Not reallly

[sterno]

How hard is it to make a working model of a one-click order?

This is why I think you need to have some tie between the effort required to develop a patent and the royalties you can achieve.

Please Go Away

[thebdj]

This message is directed to Florian Mueller, hopefully a more reasonable individual then most the /. anti-patent zealots.
Your comment about IBMs patents is borderline FUD. While some of the patents may have nothing to do with software, those that do and are up for "renewal" (in the US you just pay your maintenance fee at 3, 7, and 11 years post grant) are usually only renewed if the continued protection is sought. In this case, by turning over those patents and not paying fees, they become fully public; however, most people in the public don't understand this system and simple add 20 yrs to the filing date and forget about it. This shows those patents are clearly available for individuals to use.

Another comment is the one about being limited to only certain licenses or as you say specific projects like Linux. Now clarify something for me, does that mean that individuals can then only release code under certain licenses? If so, which ones? Why is this really bad if the license limitations prevent people from using restrictive licenses. Ones specific to project (ie the Linux Kernel) may only really apply to those one things, and may not have much or any scope outside said project(s).

You bring up the combination patent idea where A and B are in the system, but your combination exists as Patent C. If there exists the proper measures as set out by SCOTUS and CAFC that A and B could be combined for C the patent can invalidated in court. If it cannot be invalidated, then you might actually have a problem...but in most cases an invalidation can be done unless combining A and B would be totally unheard of.

You mention that this doesn't reduce the number of enemies you might face. However, having your own patents at hand is good in the event of a court case, because you have your own protection there against their threats, particularly if you can show that their patent is either invalid or that your creation is along the lines of this patent and not theirs. It is also good because companies change regimes. Just because IBM is friendly with Open Source now does not mean they will be in 10 or 15 years.

The troll is a seriously problem, but the key to the troll is they are out to make a lot of money. The fact is that in the software world open-source does not necessarily have the money. There are bigger and better targets worth much more money. Large companies like Microsoft, Adobe, Sun, Google, etc. are far juicier targets then Redhat, Novell, etc. IBM is a nice big target, but in many peoples minds almost too big. Microsoft has been too quick to settle in the past (possibly because they know they will lose) with various cases (with maybe the exception of EOLAS). However, IBM is fighting SCO tooth and nail and not just sending them on their way to get rid of the pest. When IBM wins this case, they will be much less tempting targets because people will understand that IBM is not going anywhere. Oh and IBM has one of the biggest (actually it might be the biggest) patent portfolio in the US.

I think software patents are not all the gross evil that everyone sees them, and that certain well written ones are just fine especially in cases where a hardware or software implementation of a process can be used with equal efficiency. I do believe the problem with the US system lies in the fact that the addition was not made by lawmakers or the Patent Office, but by a panel of judges known as SCOTUS, actually the USPTO has tried their best to limit software patents and more particularly business method patents as best as they can without overstepping the SCOTUS ruling.

I just hope that you have a bit more of an open-mind then the zealots I see speaking most frequently on this topic, and have enough since to understand the need for rational debate and discussion and not just one-sided bashing.

Re:Please Go Away

[Anonymous Coward]

thebdj wrote:

Another comment is the one about being limited to only certain licenses or as you say specific projects like Linux. Now clarify something for me, does that mean that individuals can then only release code under certain licenses? If so, which ones? Why is this really bad if the license limitations prevent people from using restrictive licenses. Ones specific to project (ie the Linux Kernel) may only really apply to those one things, and may not have much or any scope outside said project(s).

I think Florian is refering to the Nokia patent pledge here, which by many was perceived as a meaningless gesture. Nokia only pledged their patents to the Linux kernel project.

Some people speculated that Nokia only did this not to violate GPL or LGPL because they might use Linux Kernel in some of their products (beside handsets Nokia is a big supplier of infrastructure solutions to service providers).

Re:Ask the right people

[symbolic]

The real question is, how do you reward software ingenuity and creativity if you cannot patent something? Is it enough to make money?

Perhaps this question would be better directed to Corel, Adobe, Apple, Microsoft, or any other entity that has been very well rewarded for its ingenuity and creativity with respect to software. Did patents get them where they are? This is precisely why this patent circus is so rediculous - the current success of various companies isn't even based on patents that protect their so-called "IP". Create something that people like, that they can use, and make it available at a reasonable cost, and they will most likely buy it.

The fact that Company A may have a better marketing team, a better implementation, more investment capital, smarter employees, or whatever, is NOT the jurisdiction of patents - but this is exactly the effect that why will have - they will eliminate competitive forces that can offer a better product.

I'd vote for this

[doorbot.com]

Patent reform as proposed by arkanes:
[x] Yes
[ ] No

#2, #3 and #7 would solve a lot of problems...

Read The United States Constitution , moron!

[fizteh89]

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"

The United States Constitution (Article I, Section 8).

Patent is not the right to make and sell a product,
but the right to exclude others from using patented invention
for a limited period of time.
Invention is not the same thing as actual final product.
And there is no money mentioned anywhere in this formula:

Don't you get it, idiot ?

SCOTUS did not legalize software patents

[brlewis]

SCOTUS did not legalize software patents. If Diamond v. Diehr and prior rulings were followed, we would not have software patents today.

Re:SCOTUS did not legalize software patents

[thebdj]

I hate to break it to you, but people actually seem to agree that Diamond v. Diehr is what opened the door for software patents. It said well you cannot patent the algorithm, but you can patent the system using it. Therefore, through testing in the court, particularly the CAFC, software patents began to become allowable matter despite USPTO attempts. There is no official law that saw software is patentable, by the letter of 35 USC 101 it quite possibly isn't, but the courts have said otherwise.

It seems that no one has really been willing to make much of a move on changing this since then, including Congress. Ideally it would probably be desired that law was made or SCOTUS re-examine the decision if an appropriate case were to arrive.

Re:SCOTUS did not legalize software patents

[brlewis]

What Diehr said is that a claim does not become unstatutory just because software is a part of it. They affirmed Benson and Flook, in that if the only novel/non-obvious part of a patent is the software, then the invention as a whole cannot be taken as novel/non-obvious. They also pointed out you can't just remove the software and look at what's left. The way the software interacts with other elements may be novel and non-obvious. However, practically none of the "software patents" that are discussed on slashdot fit that description. The kind of invention Diehr opened the way for would include software elements, but wouldn't be what we call a "software patent".

Yes, I'm aware lots of people see it differently. That's because lots of people are wrong. Hardly anyone reads the case carefully. For example the oyez summary incorrectly attributes to Stevens the idea that no software can ever be patentable. He said no such thing, and in fact said he had no difference of law with the majority, only difference of fact (his reading of the claims.) The bitlaw summary says the majority saw the software as the only novel part of the invention. The majority said the opposite. I don't care that lots of people agree that Diehr opened the way for software patents. Lots of people are wrong.

Wouldn't this be unconstitutional and unenforceabl

[JSBiff]

Ok, I don't really know for sure, but I think I've seen somewhere that there is a principle in law, based upon the constitutional right to due process, I believe, I'm not sure. Anyhow, the gist of it is, you can't sign away your constitutional rights. And, the right to sue is considered, I believe, a constitutional right. There are some exceptions, apparently - like the fairly standard 'arbitration' clauses, where you have to agree to that you will take grievances to an arbitrator of some sort.

But in this case, the license agreement would be purporting to have more authority, I think, than it legally would be allowed to. If someone wants to sue a third party, using non-free software, over infringement of their product, would this prohibit them from excersing their legal rights? Ok, if you have no idea what I just said, here's a more spelled out example.

Tom gets GPL'ed software from Joe, which includes the clause proposed by the parent poster. Tom also rights software, that's completely different from Joe's software, and distributes it under the Tom EULA (his legal right to do), and Tom has a software patent on his software also. Mike sees Tom's software, and decides to clone it, stepping on his patent. Tom now decides to sue Mike - does he now owe Joe $1M dollars/yr?

Possibly, but I don't think that the courts would really uphold this. IANAL.

Reverse engineering isn't illegal

[Husgaard]

At least in Europe, even reverse engineering is forbidden by copyright law, except for the purpose of making software interoperable with another product.

I don't think so.

Of course the computer programs Directive (91/250/EEC) states reverse engineering for the purpose of making software interoperable as being explicitly allowed.

But I know of no EU laws (or case law) forbidding reverse engineering of software, and I ought to know.

In 2002, when the EU commission proposed the software patent directive, they wrote: "The proposal therefore reflects concerns that if 'isolated' computer programs could be patented, this would blur the distinction between the scope of copyright and patent protection, and that if enforced, patents including such claims could be used to prevent "reverse engineering" and other activities considered legitimate in respect of computer programs already protected under copyright law.".

If you know of any EU law (or case law) that forbids reverse engineering of software in Europe, please let me know.

Re:Reverse engineering isn't illegal

[Halo1]

Of course the computer programs Directive (91/250/EEC) states reverse engineering for the purpose of making software interoperable as being explicitly allowed.

But I know of no EU laws (or case law) forbidding reverse engineering of software, and I ought to know.

The 91/250/EEC directive states that under certain conditions, a copyright holder cannot forbid reverse engineering. This implies that if those conditions are not met, the copyright holder can forbid it. And article 6.2 says:

2.The provisions of paragraph 1 shall not permit the information obtained through its application:

(a) to be used for goals other than to achieve the interoperability of the independently created computer program;
(b) to be given to others, except when necessary for the interoperability of the independently created computer program; or
(c) to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright.

So maybe you can reverse engineer it if you do nothing at all with the information you gained that way afterwards (not even give it to others), but that's about it.

In 2002, when the EU commission proposed the software patent directive, they wrote: "The proposal therefore reflects concerns that if 'isolated' computer programs could be patented, this would blur the distinction between the scope of copyright and patent protection, and that if enforced, patents including such claims could be used to prevent "reverse engineering" and other activities considered legitimate in respect of computer programs already protected under copyright law."

That was also in relation to interoperability. The reason is that the interoperability exception of copyright law is rendered powerless in the presence of software patents (unless you have a specific exception for interoperability in there as well). After all, even if you manage to reverse engineer the program and create a compatible implementation (legal under copyright law), the software patent will most probably still apply to your independent implementation.

In fact, the reverse engineering itself may not be (legally) possible in the presence of software patents: even though copyright cannot be used to forbid running and analysing a program to figure out how it works (because of the earlier mentioned directive), if a software patent applies to it than a patent license could still be used to forbid running the program for the purpose of reverse engineering it.

Re:Reverse engineering isn't illegal

[Husgaard]

It isn't correct to assume that 91/250/EEC implicitly forbids reverse engineering when the conditions of Article 6 are not met. Please note that Article 6 is stated in the negative: "The authorization of the rightholder shall not be required where [...]".

The legal effect of this is that EU member states are not allowed to pass local laws that requires the authorization of the rightholder in the situation described in Article 6.

Member states are technically still free to pass local laws forbidding reverse engineering in other situations (like disassembling the Sony rootkit to show that it contains LAME code), but I know of no EU member states that have passed such legislation.

As for my quote of the Commission when they proposed the swpat directive in 2002, we all know that they lied and that the proposed directive did not reflect this concern. But the interesting thing in this quote is that they state that reverse engineering is considered legitimate. I'll re-quote just the relevant part:

[...] "reverse engineering" and other activities considered legitimate [...]

It is not correct to say that there exists an "interoperability exception of copyright law". Interoperability has never been covered by european copyright, and the reason for 91/250/EEC Article 6 is to ensure that copyright cannot be extended in local state law to forbid reverse engineering for the purpose of obtaining interoperability.

Re:Reverse engineering isn't illegal

[Halo1]

It isn't correct to assume that 91/250/EEC implicitly forbids reverse engineering when the conditions of Article 6 are not met.

I meant it implies the rightholder can forbid reverse engineering. And afaik most EULA's do forbid that (although then you of course get in the discussion of the enforceability of EULA's). E.g. Microsoft's WinXP EULA:

5. LIMITATION ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Product, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation.

The legal effect of this is that EU member states are not allowed to pass local laws that requires the authorization of the rightholder in the situation described in Article 6.

But as far as I see, it does not prevent rightholders from forbidding reverse engineering in other cases.

Re:Reverse engineering isn't illegal

[Husgaard]

You have a point there. That is, if EULA's have any legal effect.

Re:Wouldn't this be unconstitutional and unenforce

[swillden]

you can't sign away your constitutional rights. And, the right to sue is considered, I believe, a constitutional right.

But agreeing to this clause in the GPL wouldn't be signing away that right. You'd still have the right to sue, but there would simply be an additional cost if you chose to do it and had already agreed not to.