UK Judge: Who needs software patents?

Glyn Moody writes "C|Net has a surprising story about a seminar given by a top judge at the U.K.'s Court of Appeal who specializes in intellectual-property law. According to the article, he has "questioned whether software patents should be granted, and has criticized the U.S. for allowing "anything under the sun" to be patented." Is the tide turning?"

Comments

Pay for the Progress Bar You Use!

[eldavojohn]

While this judge's message may seem absurd, remember to pay royalties when you code a progress bar in your application.

That's right, a whole lot of people owe William S. Andreas and Jeffery P. Foster of IBM a whole lot of money.

Oh, and this was filed in the U.S. but approved by a European patent office so I don't think it's fair for this judge to bash only us Yanks.

My church had a fundraiser once and I believe they used a progress bar on a website to track their earnings ... I should e-mail Mr. Andreas and Mr. Foster--the Catholic Church has got deep pockets!

Say, have any of you Java swing programmers ever typed

JProgressBar myJPB = new JProgressBar();

? Because I was thinking of starting a patent lawyer career, I just need you to reply with your name, contact information and the application you used it on and distributed.

Re:Pay for the Progress Bar You Use!

[Harmonious Botch]

A baking thermometer is prior art.

Re:Pay for the Progress Bar You Use!

[pjt33]

Oh, and this was filed in the U.S. but approved by a European patent office so I don't think it's fair for this judge to bash only us Yanks.

He seems to have been talking about law rather than practice. The EPO seems to be breaking the law, but it would take determination and money to bring that before the relevant court(s), if it's even possible. (IANAL, and I can't be bothered to wade through the treaties to establish jurisdiction and procedures).

Re:Pay for the Progress Bar You Use!

[TheAwfulTruth]

No, because a baking thermometer does not track progress. During baking the temp usually remains constant.

However, using a visual representation of a thermometer to track the progress of a school backing sale to fund the cheerleaders trip to Washington for cheerleading finals would qualify as prior art of the concept at least.

What really stinks is how ideas that have been in use in various forms for years, decades or even centuries are suddenly now new and novel becuase they are used on a computer. The word "non-obvious" has been completey removed as a screening criteria from the patent process. :(

That type of patenting must be stopped and all previous such obvious patents reversed.

Re:Pay for the Progress Bar You Use!

[Anonymous Coward]

No, that's "A device to measure and visually indicate the average velocity of molecules inside a cooking enclosure for the purposes of assessing the status of baked goods".

Completely different.

Re:Pay for the Progress Bar You Use!

[Jerry Coffin]

While this judge's message may seem absurd, remember to pay royalties when you code a progress bar in your application.

Like most such citations, you apparently have NOT really read the patent claims (or even disclosure) -- it seems to be much more speicific than you imply. As usual, the patent itself contains a discussion of the related art that says: "Users typically need or desire to know the status of such tasks running in the background. Heretofore, this need has been accommodated by displaying a dialog box with a progress indicator on it for one or more background operations (also referred to as tasks)."

IOW, the patent itself openly acknowledges that progress bars (of various sorts) were already well known, and the patent itself is much more specific. In particular, the patent only seems to cover a progress bar that's embedded into a status bar AND accompanied by a button that allows the user to do something that affects whatever task the progress bar is related to.

Say, have any of you Java swing programmers ever typed

JProgressBar myJPB = new JProgressBar();

Hmm...does this embed the progress bar into a status bar and create an associated button to allow the user to affect the task associated with the progress bar?

Because I was thinking of starting a patent lawyer career, [...]

Why don't you start by just being a reasonably well-informed layperson. The first step would be to learn that (barely) glancing at a patent abstract does not tell you what the patent covers. Much like the abstract to a scientific paper, the abstract of a patent gives a minimal description of the general sort of thing that's covered by the patent. Only the claims tell you what the patent really covers.

Re:Pay for the Progress Bar You Use!

[ObsessiveMathsFreak]

The word "non-obvious" has been completey removed as a screening criteria from the patent process.

Sir, here at the USPTO we take pride in granting patents without consideration of trifling concepts such as; gross obviousness, unoriginality and indeed patentability itself.

Re:Pay for the Progress Bar You Use!

[Intron]

This patent is for a progress bar which tracks multiple threads. Why would your examples infringe?

Re:Pay for the Progress Bar You Use!

[makomk]

OK, so it covers the use of a progress bar with a cancel button next to it (or a button doing anything else to the task whose progress is being represented), in a status bar, with a caption on top describing the task. It might well be a new combination of features, but is that really patent-worthy?

Progress bars with cancel buttons are old hat, as are progress bars in status bars (some of which, I'm sure, have cancel buttons) and progress bars overlaid with text. Just because no-one else has combined all four before (the closest I've seen (can't remember where) is, in a status bar, a description of the task, then a progress bar, then a cancel button, in a row. Spot the difference...)

Re:Pay for the Progress Bar You Use!

[anzev]

Actually, according to the patent we don't owe anybody anything.

If you were to RTFA, you would see that it says: A system for displaying the status of a plurality of threaded tasks operating in the background includes a status bar; a progress control bar in the status bar for a primary task operating in the background and including a progress bar and first and second action buttons; the progress bar visually representing progress of a primary background operation; the first action button being selectable by a user for initiating an action with respect to the primary background operation and the second action button being selectable by a user for alternately displaying and canceling a drop list of secondary progress control bars for secondary tasks also operating in the background.

WHICH IS NOT A PROGRESS BAR but rather a special status pane. I don't care if they patent that. I'll implement it with two or three different buttons. I won't use a button, whatever...

Please, don't mislead the readers. And don't consider going into patent law, actually don't consider going into law at all - you have to read the whole document.

On a side note, this is however, what Eclipse uses -- or the whole article. But since development of that falls under IBM, I think we have no problem using that also.

Re:Pay for the Progress Bar You Use!

[J. Random Luser]

Oh, and this was filed in the U.S. but approved by a European patent office so I don't think it's fair for this judge to bash only us Yanks.

Unfortunately the EPO and its Board of Appeal have been making up their own rules and approving patents on IP which should not be patentable according to the law establishing the EPO. Last night (EST) Groklaw carried this story about the European Parliament's recent rejection of the Computer-Implemented Inventions Directive. The essay has many quotes from a British judge criticising the EPO for exceeding its brief, and from software industry sources as little as 12 years ago observing that software patents would be counter-productive. Open source advocate lobbying had little to do with the CII directive being thrown out. It was Microsoft and friends' sudden fright when they realised the European parliament was serious about enforcing the existing law as distinct from the existing practice of the EPO. Note that the bureaucrats of the European Commission were the ones who were lobbied by industry, and the ones who lost to the democratically elected members of parliament.

Just to show its fairness the Commission is now revisiting the whole field of industrial patents, including the possibility of software patents.

Re:Pay for the Progress Bar You Use!

[Bogtha]

In particular, the patent only seems to cover a progress bar that's embedded into a status bar AND accompanied by a button that allows the user to do something that affects whatever task the progress bar is related to.

It sounds like KMail infringes this. When a task is running (e.g. moving a bunch of messages from one folder to another on an IMAP server), a progress bar is displayed in the status bar in the bottom right of the window. Clicking the button to its side with the up arrow on it lists exactly which actions are being taken at that time - each task has a progress bar and a cancel button to the side.

Re:Pay for the Progress Bar You Use!

[Doctor Faustus]

No, because a baking thermometer does not track progress. During baking the temp usually remains constant.
The temperature of the oven, yes. The temperature of the food, no. Food doneness is usuallly checked by the temperature in the middle of the food: 140-180F for various meats, and a little over 200F for bread.

Re:Pay for the Progress Bar You Use!

[Yvanhoe]

Oh, and this was filed in the U.S. but approved by a European patent office so I don't think it's fair for this judge to bash only us Yanks.

Unfortunately, I can't deny this fact but I would like to point a situation so weird that in comparison, US legal system would seem clean.

It is pretty clear according to the EU laws that a software or an algorithm can not be patented. It is written, it is a binding law of the European patent office. Despite of this, this office delivers software patent. Just like this. Politicians diplomaticaly call this a "gray zone" and nobody knows the true legal value of these patents.

Re:Pay for the Progress Bar You Use!

[Jerry Coffin]

It might well be a new combination of features, but is that really patent-worthy?

I'm not sure I can say it is. I'd tend to agree that it might be open to some question -- but I also think there's a huge difference between something being open to some question, and being clearly bogus.

I'd also note that from the viewpoint of the patent office having done its job, this is a crucial difference. IMO, it's unfortunate, but the current US patent law favors issuing a patent if there's any real room for doubt. It basically says to apply for a patent, you have to sign an affidavit saying that as far as you know, this is really your own invention. From there, the burden of proof shifts to the patent office -- the law requires them to issue a patent unless they can show evidence that the invention in question is obvious, not original, etc. If there's room for much doubt at all, the PTO is legally obliged to issue the patent.

IMO, that's where a big part of the problem lies -- the assumption should really be that something really isn't new or novel until the patent applicant shows real evidence that it is, rather than being assumed to be new and novel until the patent office shows it's not.

Re:Pay for the Progress Bar You Use!

[Anonymous Coward]

Doctor Faustus is correct, the grandparent is a moron. If the temperature of the baking item is constant, why put a thermometer in it? Sheesh.

Re:Pay for the Progress Bar You Use!

[Anonymous Coward]

Not to mention H.264 (a codec which will be used in BluRay and HD-DVD) has many patents granted and pending on it, with lawyers ready to sue anyone who uses it (some patent holders have not joined the "license pool") for *pinky in mouth* One Million Dollars */pinky*, even (especially!) if they have paid the other 40 odd patent holders who do license their claims.

I think we can forget about Linux being allowed to play those discs.

Re:Pay for the Progress Bar You Use!

[Anonymous Coward]

Because in some cases you need to keep the temperature of something constant as the heat causes chemical reactions in food to occur. Such as when making toffie, or beer or any number of other things!

In that case, the timer is the measure of progress, not the thermometer.

Though yes, in the case of meats, the thermometer can be used that way.

Just watch who you are calling moron, you more often than not end up becoming one yourself in the process...

Re:Pay for the Progress Bar You Use!

[schon]

a baking thermometer does not track progress. During baking the temp usually remains constant.

Such as when making toffie, or beer or any number of other things!

You're trying to tell us that you bake beer and toffee?

He was correct. In almost every case, when baking, the thermometer is used as a measure of doneness.

Just watch who you are calling moron, you more often than not end up becoming one yourself

I'd guess this is one of the "not" cases, eh?

Re:Pay for the Progress Bar You Use!

[tambo]

He seems to have been talking about law rather than practice. The EPO seems to be breaking the law, but it would take determination and money to bring that before the relevant court(s), if it's even possible. (IANAL, and I can't be bothered to wade through the treaties to establish jurisdiction and procedures).

I don't blame you for not wanting to tread through the law - it's pretty marshy and unpleasant. Even IP professionals consider this to be a rather painful trawl through conflicting jurisprudence. However, the end result is quite clear - and quite clearly not "breaking the law."

The "law" that European patent offices are allegedly "breaking" by issuing software patents is European Article 52(2)(c), which precludes patents for "programs for computers," as well as "schemes, rules and methods for performing mental acts, playing games, or doing business."

However, efforts to seize on this language as a preclusion of software patents in any form is ignorant of European Article 52(3), which reads: "The provisions of paragraph 2 shall exclude patentability of the subject matter or activities referred to in that provision only to the extent to which a European patent application or European patent related to such subject matter or activities as such."

That seems like a pretty vague and unhelpful statement - what does it mean? It means that patent offices cannot issue patents for inventions claimed as "programs," "methods of doing business," etc. In other words, Article 52(2) does not preclude patents on methods that can be embodied as these classes. A method is a method; a method is not de facto a computer program. A method invention is to be judged for patentability on that basis - it cannot be rejected solely because it could be embodied as a computer program, or because it could be used as a business method.

This standard is very close to the U.S. rule. The only difference is that we also do not expressly ban patents for "computer programs." Rather, the U.S. patent examiner looks through the claim language and judges the patent on the basis of novelty and non-obviousness*. As long as the invention is claimed within the "statutory classes" of 35 USC 101, the invention is potentially patentable subject matter.

* It's undeniably true that the USPTO has not done a perfect job of asssessing novelty and non-obviousness. But that's a matter of effective implementation - it's not relevant to how the law should be structured.

- David Stein

Re:Pay for the Progress Bar You Use!

[indigoid]

actually i check if my bread is ready by tapping it on the underside with my finger, this has worked flawlessly so far. when it is ready it makes a different sound

thermometers are for those modern people. my parental units have baked legs of cow or sheep all my life without needing thermometers, and i cannot recall a single occasion where the meet was over- or under-cooked.

lately i have found myself becoming a tech minimalist. instead of 5 or 6 hot power-sucking computers at home I now just have a wireless/dsl router and a dell x1/samsung q30 laptop. my house is cooler (thus cutting power usage by aircon) and my power bills are 60AUD a month smaller, sometimes even better. more money for beer!

Re:Pay for the Progress Bar You Use!

[tambo]

Sir, here at the USPTO we take pride in granting patents without consideration of trifling concepts such as; gross obviousness, unoriginality and indeed patentability itself.

To be fair, when it comes to software, the USPTO has struggled under two logistical problems:

• It's really tough to find prior art on a lot of software inventions. Sure, patents like Amazon's OneClick method and Compton's "embedding multimedia on a CD-ROM" method are evidence of obviously deficient examination - prior art should have been easy to find. But consider, say, an algorithm embodying a specific video codec - the only instances of prior art might be embodied in closed-source, commercial video players. Short of decompiling and reverse-engineering a bunch of complex software, the examiner is incapable of demonstrating prior art - especially in light of the USPTO's examiner productivity metrics, which severely limit the examiner's time frame for searching and finding prior art.

• The USPTO has been really abused by Congress. They appoint patent administration officers not on the basis of patent experience, but as political favors. Worse, Congress views the USPTO as a cash cow and siphons off its excess funding - thereby depriving the USPTO of funding to improve its examination process (e.g., hiring more examiners.)

It's true that the USPTO could have done better with the resources at its disposal. But it's possible that it just hasn't been given enough resources to meet its responsibilities.

- David Stein

Re:Pay for the Progress Bar You Use!

[Doctor Faustus]

Of course, there are other ways to do it, too. A thermometer's better when you're less sure of yourself, though, and I usually overcook meat if I don't go out of my way to avoid it.

My strengths are mostly in flavoring, so frequently when my family is up at my parents' house, I'll make a marinade, and one of my parents will actually cook. At my house, I tend to lean towards casseroles and soups, since they're more forgiving on texture.

Re:Pay for the Progress Bar You Use!

[mOdQuArK!]

you have to read the whole document.

Yeah, and if you implement _anything_, make sure you read the the entirety of the document for every single patent filed in every single country which you might be potentially violating.

Shouldn't be more than a 100,000 or so documents to read through for a Hello, World! program - no problem!

Re:Pay for the Progress Bar You Use!

[ObsessiveMathsFreak]

It's true that the USPTO could have done better with the resources at its disposal. But it's possible that it just hasn't been given enough resources to meet its responsibilities.

In either case, the USPTO is incompetant and incapable of doing its job. It should stop issuing patents immediately.

Re:Pay for the Progress Bar You Use!

[tambo]

In either case, the USPTO is incompetant and incapable of doing its job. It should stop issuing patents immediately.

:shrug: Good luck with that argument.

Over the last five decades, the U.S. economy has moved steadily away from physical goods and toward intangible goods - services, culture, music, movies, etc. This includes the development of intellectual property. It is a cornerstone of our economy. That's why the U.S. Congress has steadily increased its support of intellectual property protection. Accordingly, the courts have read federal IP legislation with broadening scope, since this is the plain intention of Congress.

So if you're arguing for the dismissal of U.S. patent legislation, you'll have to suggest a way of recapturing the huge share of our GDP attributable to the export of patent-based intellectual property. Since our trade deficit is already deep in the red, you might not find your state Congresscritters to be very receptive.

- David Stein

Re:Pay for the Progress Bar You Use!

[Criterion]

"Because in some cases you need to keep the temperature of something constant as the heat causes chemical reactions in food to occur. Such as when making toffie, or beer or any number of other things!

In that case, the timer is the measure of progress, not the thermometer."

And also in that case, you ARE NOT BAKING. What part of "baking thermometer" did you not understand? Though when using a candy thermometer (as in your toffee example) you are still looking for a certain temp to be obtained. It has nothing to do with a timer. Hopefully you will keep your distance from any stove, 'cause you're absolutely clueless about cooking.

Re:Pay for the Progress Bar You Use!

[tambo]

IMO, it's unfortunate, but the current US patent law favors issuing a patent if there's any real room for doubt. It basically says to apply for a patent, you have to sign an affidavit saying that as far as you know, this is really your own invention.

In fact, this duty goes much further: applicants are required (1) to have conducted at least a minimal search, (2) to disclose all known prior art that might be relevant, and (3) to assert their reasonable belief that the invention is still patentable in light of this prior art.

Unfortunately, very often, applicants wildly shirk this responsibility. One of the damning factors of current software patent practice is that for many issuing patents - including junk like scrollbars - the applicants disclosed no prior art. You have applicants filing claims for inventions like "selling products over the Internet" and disclosing fewer than three prior art references - as if they simply don't know of many businesses selling products over the Internet. It's deplorable.

This is one of the best suggestions for fixing the USPTO's examination system: start enforcing Rule 56 sanctions, i.e., start punishing applicants (and patent practitioners) who fail to satisfy their due-diligence research and disclosure duties. A few sanctions, including patent license suspension, would prompt a rapid and marked reduction in the number of patent applications being filed, and in the quality of those patent applications.

- David Stein

Re:Pay for the Progress Bar You Use!

[calle42]

Even better: A good old parking meter is prior art, because that actually measures progress.

Re:Pay for the Progress Bar You Use!

[MrResistor]

How old is this patent? Yeah, it's all totally obvious now, but 15 or 20 years ago it might have perfectly reasonable to grant that patent.

Re:Pay for the Progress Bar You Use!

[HTH NE1]

No, because a baking thermometer does not track progress.

It tracks the progress of the pre-heating of the oven.

Other progress bars track the progress of rainfall or the progress of evaporation. They track the filling of a graduated cylinders and beakers. The filling of a test tube of blood visually indicates the progress of its being filled, and of a syringe the progress of it emptying. So does the filling of any transparent beverage container, and its subsequent emptying.

Re:Pay for the Progress Bar You Use!

[Jerry Coffin]

In fact, this duty goes much further: applicants are required (1) to have conducted at least a minimal search, (2) to disclose all known prior art that might be relevant, and (3) to assert their reasonable belief that the invention is still patentable in light of this prior art.

You certainly have to disclose any known prior art, and assert that you belive your invention should be patentable.

The minimal search is an entirely different story though. I've never heard such a statement before, and I don't see any such requirement in the applicable law or PTO rules. If this was required by a rule of the US PTO, I'd expect to see it somewhere in section 1.56. While this certainly requires that the applicant disclose any related art of which he is aware, it does not seem to contain any requirement that the applicant make any attempt (at all) make any attempt whatsoever at searching for art of which he is not aware.

This is one of the best suggestions for fixing the USPTO's examination system: start enforcing Rule 56 sanctions,

Rule 56? I'm guessing you mean 1.56? As noted above, only really attempts to prevent fraud. If somebody lives his entire life under a rock, and thinks he just invented fire, it's perfectly legal for him to file for an patent on it, as long as he remains truly ignorant (throughout the entire prosecution) that it's already known. Of course, if a patent agent or attorney was involved, they'd probably be in trouble for filing such a thing -- they're expected to at least have a little bit of a notion of what's going on. Likewise, we'd certainly hope that the PTO would notice the prior art on such a thing.

Even so, filing a patent for something reasonably well known is perfectly legitimate as long as everybody involved was ignorant of its prior invention/discovery -- and they're not required to do anything to cure themselves of their ignorance either.

Re:Pay for the Progress Bar You Use!

[simmiethemonk]

I should point out one difference between the US & Europe. The USPTO is quite pro-software patent, as is the EPO (European Patent Office). However, although the EPO has issued many software patents, they are legally questionable, because the European Patent Convention says that software cannot be patented. So, even though these patents have been issued, it is unclear as to whether they will be held valid by the courts. Some courts have said no, a few have said yes, but on the whole it is still legally undecided. By contrast, in the US the courts have already said yes to software patents. Thus, the US really is in a whole lot worse situation than Europe. (At the end of the day, patent offices can issue patents to their heart's content -- the real issue is whether the courts are willing to enforce them.)

Re:Pay for the Progress Bar You Use!

[Anonymous Coward]

When was the last time anyone on this planet stuck a thermometer in a cake to test when it was done?

Or are you now going to say that BAKING a cake is not baking either?

Re:Pay for the Progress Bar You Use!

[nathanh]

No, because a baking thermometer does not track progress. During baking the temp usually remains constant.

I'm guessing you've never baked. A baking thermometer doesn't measure the temperature of the oven, it measures the temperature of the food, and the temperature of the food does increase throughout the baking process. You know the roast is cooked through when the temperature at the centre of the roast reaches an upper limit.

Re:Pay for the Progress Bar You Use!

[Anonymous Coward]

So if you're arguing for the dismissal of U.S. patent legislation, you'll have to suggest a way of recapturing the huge share of our GDP attributable to the export of patent-based intellectual property.

I dunno. Earn it maybe?

Re:Pay for the Progress Bar You Use!

[richlv]

While this judge's message may seem absurd

i believe, most people here think us patent system is the one that is absurd.

Re:Pay for the Progress Bar You Use!

[richlv]

would this imply that even if your congress would fully understand the problem and would be willing to kill software patents (hypotethical situation), such a decision would be prevented by all the cash flows that are based upon it ?

this looks very much like "producing for producing's sake", just to keep the wheel going.

Re:Pay for the Progress Bar You Use!

[psycho8me]

Just because our economy is dependent on something, does not make it right. If our economy was based on baby mulching I would still be strongly opposed to it.

Maybe we could base our economy on, I don't know, making something or providing a useful service.

Even if software patents did not exist and copyright terms were limited (inf) it would still allow artists to live off of their works.

Re:Pay for the Progress Bar You Use!

[aztracker1]

Honestly, I've commented on this a few times... but I honestly beleive that raising the bar for applying for a patent, and thus lowering the approval cost, that an "approved" patent costs the same in either case, but more must be paid upfront, which would cover more administrative costs... If someone, or a company had to fork up the $10K (USD) up front, as the application fee, instead of after approval, there would be less stupid applications.

The USPTO could cover their costs (personell) better, and deny the patents that are obvious, have prior art, or are just plain overly broad, and silly. I don't know why this is so hard.. Yes, it does mean that Average Joe Smith is less likely to even be able to apply for a patent, but if he can't pay the $10k to apply, can he pay for it to have it, or the lawyers to do due dilligence in searching for conflicting prior art before applying? Let alone litigation against a huge corporation that is infringing...

Honestly, I think it should not only be switched around, but patents on UI and other software concepts should be limited to 5 years, not 20... What wasn't obvious 5-10 years ago, is today... software changes so rapidly, and ever evolving that any constraint on what is obvious is ever more so in time.

Re:Pay for the Progress Bar You Use!

[tambo]

would this imply that even if your congress would fully understand the problem and would be willing to kill software patents (hypotethical situation), such a decision would be prevented by all the cash flows that are based upon it?

That's an awfully large hypothetical, since I don't see that the best solution to the problem is to "kill software patents." But I'll afford you this immense concession for the purpose of this hypothetical.

Our federal government is interested in technology, in "promoting the progress of the useful arts," in the pursuit of knowledge, etc. But at the end of the day, those things don't put food on American tables. Its much greater concern - perhaps its greatest concern of all - is maintaining the American economy. It's not going to take any action that eviscerates the economy unless there's a damn good reason. "Freeing software" is a vastly insufficient rationale. Our government has to live in the real world - it can't play The Sims with the American people, risking actual daily concerns for academic principles. That would be a dereliction of its duty.

(Of course, our current government seems to have derailed, but the Americans who voted them all into office will only realize and rue their mistakes in retrospect.)

- David Stein

Re:Pay for the Progress Bar You Use!

[tambo]

f someone, or a company had to fork up the $10K (USD) up front, as the application fee, instead of after approval, there would be less stupid applications.

I can't imagine a more effective way of further reducing patent quality.

Your rule would limit patents to large corporations - those that can afford to throw away money to cement their positions. Is the financial well-being of a patent applicant a good predictor of the quality of its patent application?

Do a search sometime for patents by Microsoft, or General Motors, or any large company. You'll find a wide range of patents with unhelpful titles and incomprehensible specifications. These companies typically throw barrels of money at the USPTO to garner a range of vague, obfuscated patents of indeterminate breadth - because those patents make a better patent arsenal.

On the other hand, small entities and sole inventors have central interests in achieving patents that are clear, specific, and obviously valuable. Their goal is different: they're not trying to ward off competitors with hazy threats; they're trying to secure their most critical IP assets, attract investment, and promote licensing or a buyout. Basically, small entities don't have resources to waste on patenting; they have to be highly selective, and their patents have to be meaningful.

The USPTO could cover their costs (personell) better...

Instead, why not let the USPTO keep the fees that it already receives? One very serious problem with our current system is that Congress steals a lot of the money that the USPTO reaps from applicants. (It has to fund the Iraq war and its ultra-wealthy tax cuts somehow, right?) If the USPTO were allowed to apply 100% of its fees to strengthening its infrastructure, we'd see a marked improvement in its performance.

patents on UI and other software concepts should be limited to 5 years, not 20...

First, it sometimes takes five years just to get the patent. Many software patents filed in 2001 are still awaiting their first office action from the USPTO.

Second, we settled on 20 years because it's an international standard. We'd have to get every country with a patent office to agree to change the patent term. If you want to see just how difficult this is, try studying the history of the Patent Cooperation Treaty - getting many nations to agree to certain patent concepts is really like herding cats.

Third, as noted elsewhere in this thread, it is conceptually impossible to differentiate "software patents" from other kinds of patents, in order to apply different patent terms.

- David Stein

Re:Pay for the Progress Bar You Use!

[aztracker1]

*sigh* my argument isn't that the financial ability has anything to do with quality, so much as that a lot of stupid apps get approved because the PTO can't afford to research all the patents it is supposed to. By shifting the cost to the application stage, it can pay for what that stage is supposed to do, allowing for more applications to be *denied* without reducing the financial resources of the USPTO. The *cost* of a patent wouldn't change, but would be paid regardless of approval, leading to more of a "think twice", instead of "file for everything under the sun"...

The current application fee doesn't cover the cost of the PTO researching a patent now, which is the biggest reason so many obvious things slip through.

Re:Pay for the Progress Bar You Use!

[tambo]

The current application fee doesn't cover the cost of the PTO researching a patent now, which is the biggest reason so many obvious things slip through.

I don't see how you can draw that conclusion, or even estimate it, since a large portion of the application fee doesn't help the USPTO in any way - it gets channeled into other federal projects (*cough* Iraq.)

If you had written, "The portion of the current application fee that Congress allows the USPTO to retain doesn't cover the cost fo the PTO researching a patent now," I would wholeheartedly agree. I would also propose that the first step should be to remove the nonsensical encumbrance on the USPTO's financial resources.

- David Stein

Re:Pay for the Progress Bar You Use!

[Anonymous Coward]

removed as a screening criteria

"criterion". ("criteria" is plural.)

Re:Pay for the Progress Bar You Use!

[rtb61]

Based upon your argument americans should live in a constant state of fear because it only requires a squiggle of a pen to transfer ip assets off shore i.e. instant economic bankruptcy. And don't think they wont transfer all those ip assets to more tax friendly, legislation bendy, the poor are there to be exploited by the rich, countries. All IP assets are ephemeral and any country that banks on them for it's future is heading for an economic disaster.

Re:Pay for the Progress Bar You Use!

[aztracker1]

So why not do both... the fact is, that $100 (which iirc is the filing/app fee) won't even cover a half a day of an employee's time to research within the PTO.. if they charged the larger fee up front, making the adjustment you suggest, they would then have the financial resources to better review patent apps, and maybe hire some subject experts for the review process.

Of course, I live in Arizona, where they are kind of like you suggest... most licensing agencies (ex: Board of Nursing) are set up as 90/10 agencies. Which essentially means that 90% is supposed to go towards agency funding, and 10% into the general fund... The problem here is, the state govt still needs to approve the budget, and denies almost all reinvestment into the agency, such as expanding staff to cover growth (az has one of the largest populations growths in the country), and updating/upgrading equipment (which as we all know doesn't fit well in to an annual budget cycle (3-5 years are typical for computer use as an example). So they have a huge pool, because of all the denied budget proposals over the years, that now the state is trying to change the law, to drain their funds.

I agree with a higher oversight into an agency's budget, but allong with having their resources for that agency, there needs to be some provisions for that agency to use it as it sees fit, and some for the discression of the general fund use, to prevent a "pooling" effect like we are seeing in az.

Re:Pay for the Progress Bar You Use!

[tambo]

Here's a link to the USPTO's current fee schedule. A regular applicant must pay $300 to have the application filed, $500 for the USPTO to conduct a search, and $200 to conduct an examination. If the patent is allowable, the applicant must pay $1,400 to have the application issue as a patent and $300 to have it published. Then he must pay $900, $2,300, and $3,800 at the 3.5-, 7.5-, and 11.5-year marks (as measured from the date of issuance) to keep the patent alive.

In other words, for a regular applicant to file and receive a basic patent application and own a patent for the full term, he/she/it must pay the USPTO at minimum $9,700. (A "small entity," including a sole inventor, receives a 50% break on these fees - for a paltry minimum fee of $4,850.) This minimum fee does not include:

• The cost of having the patent prepared and prosecuted by a patent agent or attorney - which typically costs over $10,000. (The alternative is to skimp on the prosecution costs: spend inordinate amounts of time learning about claim drafting, filing deadlines, and prior art, and spend a long time drafting and prosecuting the patent application - only to run a very large risk of having an invalid or unenforceable patent.)
• Additional application fees depending on its length and claim style.
• Fees for other USPTO filings: continued prosecution refilings, certificates of correction, reissue, fees for extensions of time to respond to complicated office actions, etc.
• Fees for having incorrect examiner decisions resolved by the Board of Patent Appeals and Interferences, or to the court system.
• Fees for shoring up the patent from outside attack, e.g., reexamination and interference proceedings.
• Fees for detecting and enforcing the patent, including (worst of all) litigation.
• Fees for obtaining patents for the same invention in other countries.

Patenting is already a grossly expensive exercise. And you want to raise the rates? You must be taking a page from the conservative playbook: if we can't kill the system, let's make it completely unusable!

Your comments about Arizona's licensing agencies are right on point: administrative fees for government-issued rights (licenses, patents, IDs, whatever) should be almost exclusively used for the costs of issuing those rights. Drainage is simply an insidious mechanism for overcharging applicants and draining away the quality of service of the agency in order to fund unpopular projects. It's antithetical to democracy.

- David Stein

Re:Pay for the Progress Bar You Use!

[tambo]

Just because our economy is dependent on something, does not make it right.

We can argue all day about whether or not it's right. But our government cares more about protecting America's interests (including its economy) than it does about "doing the right thing." If you agree (1) that IP is an important part of our economy, and (2) that eliminating that component would eliminate part of our economy - then unless you can suggest a kind of business that would supplant the role of IP in our economy, the discussion is over... or at least, better left to those unconcerned with geographical, political, and economic reality.

- David Stein

Re:Pay for the Progress Bar You Use!

[Anonymous Coward]

No, but any Universal Turingmachine is, because this is a mathematical solution to a mathematical problem. It is a computer, it computes.

Re:Pay for the Progress Bar You Use!

[aztracker1]

I'm not suggesting raising the cost of a patent.. mearly suggesting that the cost be paid up front, before the process begins, and that is payed wether or not approved, making corporations that just file for everything under the sun, to build up a portfolio to think twice about it... I know that if I only had to spend a few grand to "test" submit a bunch of patents, in hopes that some get approved so I can start charging everyone, and/or suing them, I'd be more inclined to go for it. But if I had to come up with the whole thing as a price for entry, with no guarantee of approval, I'd think twice... so would many corps. without drawing less funding for the PTO (assuming the other changes were in place as well)

As to funding for organizations staying with the organization, I am all for it, I do think that part should be available for use outside the organization, only to recoup costs that came from outside to begin with.

I think this is a good thing

[Morlark]

Software patents are already (technically) not permitted here, and yet crazy inconsistencies and loopholes are allowing people to patent whatever they want. Including software and other things that are explicitly not allowed to be patented. It is good that some people are finally starting to look at this from a sensible point of view. Maybe now some progress can be made on making the patent laws sane.

Re:I think this is a good thing

[tambo]

oftware patents are already (technically) not permitted here, and yet crazy inconsistencies and loopholes are allowing people to patent whatever they want.

Presuming that "here" = Europe, I think that you're not understanding the full meaning of the European Articles in question. It's a common misconception.

You have to read both Article 52(2) (which prohibits patents on "software" and "methods of doing business") and Article 52(3) (which, specifically and literally, limits the exclusion in 52(2) to patents for software and business methods "as such.") In other words, you cannot patent software, but you can patent some other kind of invention - e.g., a useful method - that is capable of expression in the form of software, or that is applicable in business.

This is neither a loophole nor an inconsistency. It is a clear set of patentability standards, expressing a very plain and straightforward intentions of its legislators - to which the EPO has admirably conformed. You can criticize its application or consequences, but you cannot logically construe its exercise as some kind of abuse of the European patent laws.

- David Stein

Re:I think this is a good thing

[Anonymous Coward]

The state of the EU patent legislation you are describing is the result of the recent debate (and decision) over patent law in the European Parliament and the Comission, while I think the grandparent describes the state of the legislation before this decision. During this time, patents on software were indeed not allowed, however, the EPO chose to ignore the laws and grant these software patents anyway. Which of course means that the EPO was breaking the law, and I have never heard that anybody was held accountable for this behaviour.

Just goes to show that before the law all people are equal...

Huh?

[Sneftel]

Is the tide turning?

No. Judges aren't The Borg. One judge's opinion (and that's little-o opinion, not an opinion handed down) is hardly a watershed event.

Re:Huh?

[bitkari]

No. Judges aren't The Borg. One judge's opinion (and that's little-o opinion, not an opinion handed down) is hardly a watershed event

But this Judge's opinion is quite representative of the concerns of many in Europe. Remember that the EU software patent directive was rejected by a margin of over 600 votes.

If the concerns of people such as Sir Robin Jacob are well publicised, this can only help educate the public at large and inform the MEPs who vote on such matters.

Re:Huh?

[poot_rootbeer]

But this Judge's opinion is quite representative of the concerns of many in Europe.

And? Here in the US our government is about to confirm a candidate to the Supreme Court who has been clear in his opinion that the courts of the United States should not look to courts in other parts of the world as barometers of jurisprudence.

All of Europe could decide software patents are invalid and that would have little bearing on the granting or enforcement of such patents within the United States.

Re:Huh?

[TheRaven64]

If software companies everywhere in the world except the US can disregard software patents then this will mean:

1. Software development in the US will be more expensive, and/or
2. Software sold in the US will be more expensive

I can think of at least one company with a very large lobbying fund that would not be too happy to see this. Currently, software patents are tolerated by US businesses based on the belief that they will be valid in the rest of the world eventually, and the US will have an advantage since they were allowed to start collecting them before anyone else. If it looks like this is not going to be the case, then I can see a lot of pressure placed on the government to revoke them.

Re:Huh?

[Anonymous Coward]

All of Europe could decide software patents are invalid and that would have little bearing on the granting or enforcement of such patents within the United States.

I'm sure that's true, but I think you forgot to say what your point is.

Re:Huh?

[trewornan]

Remember that the EU software patent directive was rejected by a margin of over 600 votes

Bear in mind that the margin of defeat does not represent the true level of opposition. The pro-Patent lobby suddenly switched at the last minute and told their cronies and shills in the EU parliament to vote against the directive.

Re:Huh?

[Anonymous Brave Guy]

The pro-Patent lobby suddenly switched at the last minute and told their cronies and shills in the EU parliament to vote against the directive.

Because they knew they couldn't win, and by voting for the proposal that had no chance, they would have hampered their further chances later on. They still weren't going to win; apparently even they realised that.

Re:Huh?

[dajak]

Judges aren't The Borg. One judge's opinion (and that's little-o opinion, not an opinion handed down) is hardly a watershed event.

I don't think the courts are the problem. The vast majority of software patents are invalid, and most judges competent in that area, and the lawyers who prepare patents, know that perfectly well. They just don't share their little-o opinion about it very often.

The problem is patent law. Patents are valid until proven otherwise in court. They can be abused for intimidation of smaller competitors, and in a modern high tech economy it becomes profitable to do so.

The obvious course is to change patent law, but then we get to the next, and bigger, problem: there are some people in high places who believe that copyright and patent law, and the long arm of the law, are the right tools to save Western Civilization from the consequences of fair competition with the rest of the world. This idea is based on the notion of a knowledge economy, combined with the belief that only we are capable of inventing really important new stuff. These people want to introduce software patents, and since they consider themselves economic realists (and their opponents naive or closet communists) they are very hard to reason with. These people are not judges, or engineers.

Re:Huh?

[smallfries]

And? Here in the US our government is about to confirm a candidate to the Supreme Court who has been clear in his opinion that the courts of the United States should not look to courts in other parts of the world as barometers of jurisprudence.

And? You are aware that this website is read by people outside of the US, and sometimes posts stories about these parts of the world, outside of the US. Perhaps it's a difficult concept, but sometimes a story has nothing to do with the US.

Re:Huh?

[JulesLt]

The MEPs have already rejected it once, showing good sense, and I think a victory for organised grass-roots lobbying, including the EFF,NTK, and /.

It was also rejected in the UK in the 1970s - in fact an explicit exclusion was made AGAINST the patenting of computer algorithms. (I believe under the grounds that they are an extension of mathematics and logic, rather than 'devices', and a formula cannot be patented)

I would imagine that many US judges would also share the same opinion and understanding of the law (the differences between patent and copyright, and what benefits/costs they have to society). What they probably lack is as much influence over the legislature, or rather industry may have more say that it does in the UK. (It already has a substantial say).

Re:Huh?

[tambo]

If software companies everywhere in the world except the US can disregard software patents then this will mean:

1. Software development in the US will be more expensive, and/or
2. Software sold in the US will be more expensive

Alternatively, you might expect to find more startup companies in the U.S. organized around a novel software product. That is exactly what has transpired. The U.S. continues to be the leader in software development - especially in novel software concepts.

History review: The U.S. experienced a large software-based tech boom in the late 1990's. We also experienced a large bust in 2000, mostly because investors went bonkers, forgot that software is a business like any other business, and neglected to tie their investments to a valuation of business merit. We're now seeing a slow but steady buildup of our software market - fueled in part by (surprise!) small startups with novel software concepts.

Consider this: When it comes to the software patent game, Microsoft is 0/2 - having taken big losses to Stac Electronics ($39 million) and once to Eolas ($521 million). Yet Microsoft is a huge proponent of software patents. Microsoft is also shifting its business increasingly toward acquiring small startups with novel software concepts (e.g., its acquisition of Connectix.) Reason: Microsoft's mainstay products have stagnated, and it needs fresh software ideas... which are most easily acquired (exclusively) from small startups. Notice a trend here?

- David Stein

Re:Huh?

[tambo]

If software companies everywhere in the world except the US can disregard software patents then this will mean:

1. Software development in the US will be more expensive, and/or
2. Software sold in the US will be more expensive

Alternatively, you might expect to find more startup companies in the U.S. organized around a novel software product. That is exactly what has transpired. The U.S. continues to be the leader in software development - especially in novel software concepts.

History review: The U.S. experienced a large software-based tech boom in the late 1990's. We also experienced a large bust in 2000, mostly because investors went bonkers, forgot that software is a business like any other business, and neglected to tie their investments to a valuation of business merit. We're now seeing a slow but steady buildup of our software market - fueled in part by (surprise!) small startups with novel software concepts.

Consider this: When it comes to the software patent game, Microsoft is 0/2 - having taken big losses to Stac Electronics ($39 million) and once to Eolas ($521 million). Yet Microsoft is a huge proponent of software patents. Microsoft is also shifting its business increasingly toward acquiring small startups with novel software concepts (e.g., its acquisition of Connectix.) Reason: Microsoft's mainstay products have stagnated, and it needs fresh software ideas... which are most easily acquired (exclusively) from small startups. Notice a trend here?

- David Stein

Re:Huh?

[davebert]

And now they're trying again. See the story on Groklaw for the details.

Is the tide turning? No.

[dougmc]

Is the tide turning?

I don't think so. Lots of people have been saying that software patents aren't needed, for a long time, and this is just one more guy. Sure, he's a guy with `credentials', but even that's not so unusual.

When the patent process actually changes, THEN you can say the tide is turning. Until then, the tide is just growing, like it has been for a long time ...

There are a few good patents as well

[poeidon1]

Though the whole topic of software patents has usually only one solution of abolishing them completely, there were a few good works as well which deserved to be patented for e.g. RSA encryption etc, But these are really very few in number compared to the number of stupid/ridiculous/outrageous patents that are granted.

Re:There are a few good patents as well

[CastrTroy]

RSA encryption is a mathematical algorithm. You can't patent that. You can't patent a program that implements a mathematical algorithm either (or you shouldn't be able to). I don't think i've seen a piece of software that should be patentable.

Re:There are a few good patents as well

[Anonymous Coward]

It was recently revealed that RSA style encryption was first figured out by a fellow working at the British Intelligence agency a few years before the US guys figured it out and patented it (do a google on it).

It was classified so the general public didn't know about it. Still does beg the question of whether it was really such a huge leap for a person with the mathematical/cryptographic know how.

The fact seem to be that with billions of people in the world, innovation is largely a building process (i.e., if it is the logical time for a development, and enough qualified smart people are working on the problem, the ideas are not going to be unique).

Re:There are a few good patents as well

[Anonymous Coward]

Remember, the idea behind patents is to encourage someone to make their idea public. As a reward, they get exclusive use of the idea for a limitted time, afterwhich ANYONE can use it for FREE. Without a patent system, ideas and innovations might remain secret forever, and potentially be lost.

Many like to complain about absurd patents. If the concept is absurd, why do you want to use it? If it is "obvious", it can't be patented, though obvious is in the eye of the beholder. If it is something everyone already knows/does, there is prior art, and again can't be patented.

My main beef with software patents is that 20 years might be a bit long to wait before it can be used freely. I expect 10 years might be a better number for software.

Re:There are a few good patents as well

[pjt33]

There was actually prior art for RSA, but the USPTO didn't see it because GCHQ (the UK equivalent of NSA) didn't like their researchers publishing in academic journals.

Re:There are a few good patents as well

[Anpheus]

I had a choice between modding this down and replying, but I'll give you the benefit of the doubt here. Anything can be described as a mathematical model based on a set of axioms, from which operations on elements can be performed. That's right, your toaster has many underyling mathematical principles, so does your microwave, and any other device. There really isn't a whole lot you can't use some mathematical model to explain. So given your reasoning, there ought to be no patents. Even such ideas as relational databases can be explained quite well using Tuple Calculus. Complex operations within relational databases can be derived from broad mathematical definitions. It's a property of emergence, and in the future I don't see many, if any, fields not represented by some subset of mathematics.

To put it succinctly, if you don't like patents, simply say so. If you're going to be grabbing for excuses not to like certain kinds of patents, you're not helping the problem.

Re:There are a few good patents as well

[CastrTroy]

The difference between a toaster (which would be patentable if it was a new invention) and software is that the toaster isn't implementing a mathematical algorithm. The resulting actions of the toaster can be explained by physics and chemistry, but isn't the result of pure manipulation of numbers. RSA is just a way of manipulating numbers. A toaster, or any other physical invention should do more than manipulate numbers. unless it's a computer, and it's purpose is manipulating numbers. I have no idea why nobody ever patented the computer. Basically it should work like this. If you can't patent something without adding "software","a computer", or "the Internet" to it, you shouldn't be able to patent something simply by adding "software","a computer", or "the Internet" to it. If you could patent RSA you wouldn't need to patent software that implements it, because that would be covered by the existing patent. Since you can't patent RSA, you can't patent a piece of software that implements it.

Re:There are a few good patents as well

[evilbessie]

Actually it's the application of a specific property of prime numbers and "clock" algebra. It is non-trivial and was a specific work to make encryption from available tools.

It took lots of work by 3 very very clever people and if you honestly believe that YOU could have done it then by all means don't grant that patent.

Now navigating songs by 3 hierarchical screens is trivial and ANYONE could have come up with that.

Dewey decimal patentable but putting books in alphebetical order I don't think so.

You just need to ask yourself, could I have come up with that solution in about 2 minutes of thinking about it. If you can I would like to see a good reason why it deserves a patent.

enjoy

Re:There are a few good patents as well

[mavenguy]

Was this published? If wasn't then it's not prior art.

If you invent something and keep it secret you can't use that to later invalidate someone else's patent on that invention if the other inventor independently invented it.

Re:There are a few good patents as well

[CastrTroy]

Just because a mathematical algorithm is non-trivial, doesn't mean you can patent it. Most of the new stuff that mathematicians come up with is non-trivial. The fact of the matter is, is that math is patentable. If all your invention is, is a series of mathematical operations, then that shouldn't be patentable. Most software is either A) implementing some new mathematical algorithm, and although, non-trivial, is not patentable, because it is a mathematical algorithm, or B), is the usage of these algorithms in a certain order, which usually is pretty trivial, to anybody skilled in the field.

Re:There are a few good patents as well

[Anpheus]

Can I patent a pen & paper method of RSA*? Or perhaps a method using an abbacus? Or maybe I could build an Analytical Machine (thanks, Mr. Babbage) and perform RSA using that instead? The only difference is, one uses electric current. For some reason, it is still perfectly legal to patent electric appliances. So where do you draw the line?

* - Obviously I can't patent RSA's algorithm per se, but hypothetically speaking, any other computer algorithm could be performed on nonstandard hardware, mechanically or mentally, albeit you must sacrifice speed and accuracy.

Re:There are a few good patents as well

[Anonymous Coward]

Copyright? Yes.
Patent? No.

Patents are generally idea based while Copyrights are implementation based.
So you could copyright it, not patent it.

Re:There are a few good patents as well

[radtea]

There really isn't a whole lot you can't use some mathematical model to explain. So given your reasoning, there ought to be no patents.

An explanation or a description of a thing is not the thing. There is nothing that can't be explained or described in English, either, but that does not make books patentable. You are confusing the use of math as a language used to describe and invention with the treatment of the math as an invention.

Re:There are a few good patents as well

[Tim C]

Actually it's the application of a specific property of prime numbers and "clock" algebra. It is non-trivial and was a specific work to make encryption from available tools.

It took lots of work by 3 very very clever people and if you honestly believe that YOU could have done it then by all means don't grant that patent.

By that standard, almost every advance in science for the last couple of hundred years should be patentable. I fail to see how you can make a distinction between pure research in physics and pure research in mathematics. but that's what you'd have to do to allow things like RSA encryption to be patentable without allowing patenting of things like the theory of relativity, or a particular equation.

Re:There are a few good patents as well

[pjt33]

That's incorrect under current US patent law.

Re:There are a few good patents as well

[tambo]

The difference between a toaster (which would be patentable if it was a new invention) and software is that the toaster isn't implementing a mathematical algorithm.

It's not?

From a patent perspective, a toaster could be claimed as:

1. A device comprising:
   • A container;
   • A toasting surface disposed within the container for holding at least one food item;
   • At least one heating element disposed near the surface;
   • A timing device connected to the heating element; and
   • A user control for controlling the timing device.
2. A method for toasting food items, comprising:
   • Providing a device as described in claim 1;
   • Placing at least one food item on the toasting surface;
   • Activating the timer by manipulating the user control, thereby activating the heating element;
   • Waiting until the timer expires and deactivates the heating element; and
   • Withdrawing the at least one food item from the container.
3. A method for controlling a toaster device as described in claim 1, comprising:
   • Upon detecting the manipulation of the user control, activating the timer and the heating element; and
   • Upon expiration of the timer, deactivating the heating element.

It's a pretty straightforward stepwise progression from claim style #1 to claim style #3. Yet, the method claimed in claim style #3 could be embodied in software. How do you draw a line of patentability between claim style #1 and claim style #3? More importantly, why would you?

Software is patentable as a method of controlling a device, possibly but not necessarily including some form of user interaction. It's very difficult to draw a conceptual distinction between the device and the software algorithm. And that difficulty is the very reason why the Court of Appeals for the Federal Circuit made a stepwise progression from denying software patents (Gottschalk v. Benson) to allowing some software patents (Diamond v. Diehr) to abandoning "is it software?" as a relevant factor for patentability (State Street Bank & Trust Co. v. Signature Financial Systems.)

A method is a method - it can be embodied as a circuit, or as a chemical process, or as a machine with moving parts, or as software. It's still the same method. EEs and MEs and CSs have recognized this as a scientific truism for decades. It's kind of odd that when it comes to patents, people want to start gerrymandering.

- David Stein

Re:There are a few good patents as well

[mavenguy]

How is this incorrect?

The only non-publication prior art are:

102(a) "known or used" this has long been held to be interpreted as "public" knowledge and/or use

102(g) refers to an invention having been made, but only such that it was not "abandoned, suppressed, or concealed"

Neither case supports the keeping secret scenario as negating patentablity.

Re:There are a few good patents as well

[Anpheus]

No, I'm not. The parent clearly states that he believes nothing described by mathematical processes should be patentable. This is fallacious at best; our physical world is well understood and there are scarcely any processes, mechanical or otherwise, that cannot be described mathematically.

Re:There are a few good patents as well

[Chowderbags]

The computer was patented. Presper Eckert and John Mauchly of the University of Pennsylvania held the patent for awhile based on their work on the ENIAC until a court case ruled that the ENIAC was a derivative of the Atanasoff Berry Computer, invented by John Atanasoff and Clifford Berry at Iowa State University. You can read the court documents if you really want. http://www.cs.iastate.edu/jva/court-papers/

Re:There are a few good patents as well

[CastrTroy]

Just because I use math to describe my invention, doesn't mean that my invention is a mathematical algorithm. The way a toaster works can be explained using mathmatics, but you also have to use physics and chemistry to explain how the electricity makes the element hot, how the heat gets to the bread, and why the bread turns brown when the heat is applied to the toast. Just because you use math to describe the physics and the chemisry, doesn't mean that your invention is math. If you look at RSA, it is only mathematical steps, and doesn't need any tangible objects, only numbers being manipulated. A toaster require physical things such as the toast, the heating elements, and electrons moving though them.

Re:There are a few good patents as well

[pjt33]

102(a) "known or used" this has long been held to be interpreted as "public" knowledge and/or use

I can find references which talk of the existence of exceptions, although without clearly identifying them. E.g.

In some very rare cases, even if a first inventor never files a patent application, and publication of the first invention only occurs after a second inventor's application is filed, and the second inventor had no knowledge of the first inventors work before it was published, the first inventor's invention will be prior art to the second inventor if steps have already.(sic) The proof problems in this kind of case are difficult but there have been a few patents successfully challenged on this basis.

(I presume that should read "already been taken").

Either way, it appears that the security lecturer who said that "What matters is the wording of the law, which should be understandable if you can read a C program" was optimistic, and I withdraw my assertion in the grandparent post.

Re:There are a few good patents as well

[Wolfbone]

"How do you draw a line of patentability between claim style #1 and claim style #3? More importantly, why would you?"

One would draw the line where you yourself have very nicely drawn it and disallow claim #3. That is the essence of the exclusions in EPC Article 52 and the answer to the why of it is to be found in the economic and social welfare principles upon which the patent system is founded. Principles that have apparently been forgotten in the U.S. but fortunately not in the U.K: http://www.bailii.org/ew/cases/EWHC/Patents/2005/1 589.html

It is quite irrelevant that it is possible to make the facile argument that every method could be implemented in software and that sometimes it is difficult to draw distinctions conceptually. Patent system policy and law is not made to conform to academic arguments about the mathematical nature of the physical world but to conform to the economic and social requirements implied in the phrase, "promote progress in the sciences and useful arts".

Re:There are a few good patents as well

[tambo]

I fail to see how you can make a distinction between pure research in physics and pure research in mathematics.

You can't, of course. But that's completely irrelevant, as the delineation is between pure research and applied research. The relevant question is: Is this invention "useful" in a pragmatic sense? Does it have an applied context? Is it part of a technical advance, like the development of a commercial device or a chemical process, or is it a pure scientific discovery with unknown application?

This is the critical question to patentability. You can't patent the law of gravity, or equations to measure it in the abstract. But you can patent a method of using gravity in some novel way during a particular industrial process. That's the heart of the patent system. It's also the basis for the term "utility patents."

- David Stein

Re:There are a few good patents as well

[tambo]

One would draw the line where you yourself have very nicely drawn it and disallow claim #3.

You're missing the point. Claim #3 doesn't mention "software." It could be embodied as software, or as a circuit, or as the moving parts of the toaster. It is claimed solely as a "method," and is protected no matter how it is implemented. At the end of the day, it's just a method.

For many years, U.S. courts tried exactly what you propose: disallowing patents for "software" methods, but allowing patents for "other" methods. They concocted increasingly bizarre rules for determining whether a method was "software" or was not "software." It became an exercise in futility. State Street Bank & Trust, the pivotal case allowing patents for software, was the culminating finding that there isn't any logical test for a "software" method vs. a "non-software" method.

- David Stein

Re:There are a few good patents as well

[jabuzz]

Except it is now known that there is prior art on the RSA algorithm from Clifford Cocks working at GCHQ. The fact that two independent groups came up with the same alogrithm would strongly suggest that the algorithm was obvious to those skilled in the art, and should not have been granted a patent in any case, even if you ignore the prior art.

While on the surface the RSA patent looks like an indicator of a good software patent, if you dig a little, it quickly becomes obvious that it is not.

Re:There are a few good patents as well

[Wolfbone]

"You're missing the point. Claim #3 doesn't mention "software." It could be embodied as software, or as a circuit, or as the moving parts of the toaster. It is claimed solely as a "method," and is protected no matter how it is implemented. At the end of the day, it's just a method."

Indeed, as Jonas Maebe points out, it doesn't need to mention "software" to be recognisable as a "software patent" claim:

The easiest test is to check whether a claim can be formulated as a
program claim. Each program claim can be formulated as a process claim,
the reverse is not true.

An example of a program claim is "a computer program stored on a
carrier which, when loaded and executed on a computer, performs the
process according to claim X". You can always rewrite that as "a
computer performing the process according to claim X", and it will
cover the same innovation (be it in a different form, causing some
differences regarding what you can forbid others from doing).

However, if you have a process claim stating "a printer printing an
image whereby the ink is spread on paper according to algorithm X",
then you cannot replace this with "a computer program stored on a
carrier which, when loaded and executed on a computer, performs the
process according to X", because a computer or computer program cannot
spray ink (just like a computer program cannot wash your cloths, cannot
make chocolate etc, otherwise I'd be programming myself a milkshake
right now).

In other words, every process claim which can be rewritten as an
equivalent program claim, is definitely a software patent claim.

What does this mean in practice? That people have to be careful
regarding how they formulate their claims (just like they have to be
today already to a certain extent, due to all the required technical
and further technical effects). Instead of claiming "a computer
performing an algorithm corresponds to industrial process X", they have
to claim "industrial machinery Y steered by a computer giving
instructions so that this machine performs industrial process X"
(because a computer+software can never perform that industrial
process).

Note that this still doesn't remove all grey areas, as that is simply
impossible afaik (e.g. if you claim a program on mobile phone, is that
the same as a computer?). It does work in most cases however. In cases
of doubt, then you can go down to the classic controllable forces of
nature theory in order to establish whether there is some empirical
natural science behind it (mobile phone antennae using a new way of
sending communication waves) or not (mobile phone just performing
compression on the data to send).
...
Jonas

Re:There are a few good patents as well

[Anonymous Coward]

>i?If you can't patent something without adding "software","a computer", or "the Internet" to it, you shouldn't be able to patent something simply by adding "software","a computer", or "the Internet" to it.

Likewise the phrase "in my pants."

This device manipulates numbers - IN MY PANTS.
This invention heats food - IN MY PANTS.
This algorithm emulates ants.

Re:There are a few good patents as well

[chiok]

A menu describes the meals a restaurant serves. This is, of course, irrelevant to applying intellectual right restrictions on meals. Just as someone making a mathematical model of a physical situation is irrelevant for applying intellectual right restrictions on physical phenomena.

One thing that non-scientists have a hard time grasping is that there is not one mathematical model of physical phenomena that is correct, instead there are many competing and mutually-inconsistent mathematical models that explain and predict physical phenomenal quite well... just like there can be many competing and mutually-inconsistent menus for a restaurant.

Re:There are a few good patents as well

[Alsee]

I'm not sure why you're so confused with all the questions. You can patent some new and nonobvious implementation of machine that happens to calculate RSA... some particularly inspired arrangment of gears or something. However ordinary old PCs have already been invented. And you also cannot patent the concept of any machine to calculate RSA. You cannot patent concepts of doing something, only particular implementations of something.

If you're still having trouble with the issue, I suggest you turn to the US Supreme Court. As far as I can tell, in all of the US Supereme Court rulings relating to the patentability of software... and in particularly the most recent Supreme Court ruling Diamond v. Diehr... they give extensive reasons why software is not and cannot be patentable. They explicitly state that the key to the patentability of a process is the physical transformation of an article or material to a different state or thing. That insignifigant post solution [physical] activity cannot magically transform non-patentable software into a patentable process. And most signifigantly they state that algorithms [software] is treated as though it were a familiar part of the prior art... in effect that software can NEVER qualify as novel nor nonobvious.

Some novel and nonobvious process to physically transform some material to a different state or thing is a patentable physical process that does not lose patentability if you happen to mention an equation or if you happen to use a computer somewhere during the process. However a mathematical equation for changing one number into another number... a mathematical algorithm for processing one set of numbers into another set of numbers... cannot be a patentable invention. That logic steps for processing information is not a patentable invention.

You can certainly patent some novel implementation of a device that is capable of preforming that calculation. Howver you cannot patent the mathematical logic of doing that calculation itself, and you cannot patent blindingly obvious step of using an ordinary prior art computer to get the resuting numbers of some math calculation.

The US Supreme Court has been quite explicit that software is not patentable, and why. It was a lower US courts that decided to throw out and reverse established US law and consistant established US patent office standards and all international standards and norms of patent law, a lower US court that violated several staements and principals of standing US Supreme Court rulings, a lower US court which took it opon itself reverse all such laws and policy and to reverse the patentability of software is contrary to all arguments of the US patent office. A lower court which simply "invented" the patentability of software. And of course there was also the "invention" of business method patents.

And then the rest of the lower courts went and followed that freak ruling, and they started upholding software patents as well.

And we are currently saddled with this contrary-to-Supreme-Court-law ruling and we are currently saddled with these invalid software patents being granted and upheld because....

... because the Supreme Court has not reviewed a single software patent case since that bad lower court ruling. Because the Supreme Court has not had a change to smack down that judge and that ruling for violating standing Supreme Court law.

It is quite understandable that the Supreme Court is overwhelmed with thousands of applicants begging for their thousands of cases to be reviewed and addressed... and that they are a single court and are only physically capable of hearing a handful of cases per year... and that things like civil rights cases and criminal cases and unconstitutional laws tend to take presidence. That they are generally not going to bump some civil rights case off the docket to make room for some stupid civil patent dispute between t

Re:There are a few good patents as well

[Alsee]

to allowing some software patents (Diamond v. Diehr)

First of all that is the most recent Supreme Court ruling on the subject.

Your argument after that point is basically to say that lower courts found unacceptable the line between software and actual patentable inventions, and that lower courts REVERSED the Supreme Court ruling and reasoning on the subject. But guess what? Lowercourts cannot reverse Supreme Court law. In Diamond v. Dierh the Supreme Court gave explicit reasons that software was not patentable, and they did not reverse their previous reasons that software patents were invalid.

What Diamond v. Dierh said was that a physical manufacturing process did not lose patentability simply because it happened to include a math formula (or software). Well duh.

the Supreme Court also explcitly did *not* rule even that industrical rubber manufacturing patent as valid. They ruled that an industrial rubber manufacturing process did not fail 101 satutory subject matter, and they explicitly stated that even that patent might still fail on 102 novelty and 103 nonobviouness grounds.

The Suprme Court explicitly stated that the key to the patenability of a process was the physical transformation of an article or material into a different state or thing. Mathicatical equations and algorithms for calculating or "processing" information were not "processes" in tghe patentable sense.

The Supreme Court Stated that insignifigant [physical] post solution activity could not magically convert nonpatentable software into a patentable process. The Supreme Court gave a very explicit warning "To hold otherwise would allow a competent draftsman to evade the recognized limitations on the type of subject
matter eligible for patent protection".

The Supreme Court said that any mathematical algorithm (meaning any possible software) was considers, for patent purposes, to be a "familiar part of prior art. In effect that any possible math... and any possible software... inherently failed to satisfy novelty AND fail non-obviousness. And as I said the Supreme Court explicitly stated that the rubber manufacturing process at hand could still fail novelty and nonobviousness, but that neither of those issues was before the court. And it does appear that the patent in Diamond v. Diehr would have lacked novelty and nonobviousness under the rule that the software involved was... as the Supreme Court said... treated as a familiar part of prior art.

And perhaps most signifigantly, Diamond v. Diehr was a 5-4 decision. The 4 justices were dead set against opening the door even a crach to software patents. The 5 majority justices made it explicitly clear that they intended their ruling to stand for the fact that an industrial rubber manufacturing process did not fail under 101 subject matter grounds, and that they did not intend their ruling to be read or applied in the way the minority feared it might be read. And on that point the minority was right and the majority's prediction was wrong and the majority's warnings were ignored. Many patent lawyers and courts took the naked ruling in favor of the patent applicant and misapprehended the case as supporting software patents when it said nothing of the sort.

A method is a method

A mathematical equation or calculation for evaluating information is not an invention.

A math equation can no more be a patentable invention than a number. You can have a 100 digit number that has never been seen before (novel) and which is nonobvious, and which is usefull, but math is not an invention. All numbers and all math equations and algorithms are pure logic and consider a familiar part of prior are for patent purposes.

It's kind of odd that when it comes to patents, people want to start gerrymandering.

No gerrymandering. The Supreme Court says the key to a patentable process is the physical transformation of physical materials into a different state or thing. And of course an inven

Re:There are a few good patents as well

[tambo]

that lower courts found unacceptable the line between software and actual patentable inventions, and that lower courts REVERSED the Supreme Court ruling and reasoning on the subject.

Incorrect.

The holding in Diamond v. Diehr was a (quite straightforward) reaffirmation of the timeworn concept that "laws of nature, natural phenomena, and abstract ideas" were not patentable, while "the use of [an] equation in conjunction with all of the other steps in [a] claimed process" was a patentable method. State Street Bank & Trust cited this exact same standard of patentability, and reached the exact same conclusion: that the use of a set of mathematical equations in a specific, applied context is a patentable method, regardless of how that method might be implemented.

In so holding, the Court of Appeals for the Federal Circuit did not "REVERSE" the Supreme Court. They applied the exact rule that the Supreme Court had affirmed, in the same conceptual context. And the Supreme Court must not have vociferously disagreed with them, as it denied certiorari for appeal (525 US 1093 [1999]).

The Suprme Court explicitly stated that the key to the patenability of a process was the physical transformation of an article or material into a different state or thing.

Incorrect.

The physicality was a clear feature of Diehr's method that rendered it patentable - it was one way of showing that an invention is not solely "abstract." It is not the only way; it was not "the key to patentability."

When the Court distinguished Diehr's patentable method from Benson's and Flook's unpatentable algorithms, it did not contrast Diehr's as "physical." It noted that Diehr's had an applied context - a utility - while Benson's and Flook's were merely "formulae." Note:

• In Benson, we held unpatentable claims for an algorithm used to convert binary code decimal numbers to equivalent pure binary numbers. The sole practical application of the algorithm was in connection with the programming of a general purpose digital computer. We defined "algorithm" as a "procedure for solving a given type of mathematical problem," and we concluded that such an algorithm, or mathematical formula, is like a law of nature, which cannot be the subject of a patent. (9)"

Notice the phrase "such an algorithm," i.e., algorithms used solely for "solving a mathematical problem." This implies that other algorithms are patentable.

This interpretation becomes even less disputable based on the majority opinion's Footnote 9, attached to this passage. The majority that Diamond, in arguing against patentability for Diehr's invention, had argued that the Court had previously ruled as unpatentable any "algorithm" that was a "fixed step-by-step procedure for accomplishing a given result..." - which would includes any purely software invention. But the majority expressly rejected this position:

• This definition is significantly broader than the definition this Court employed in Benson and Flook. Our previous decisions regarding hte patentability of "algorithms" are necessarily limited to the more narrow definition employed by hte Court, and we do not pass judgment on whether proceses falling outside the definition previously used by this Court, but within the definition offered by the petitioner, would be patentable subject matter.

The Supreme Court Stated that insignifigant [physical] post solution activity could not magically convert nonpatentable software into a patentable process.

Sure - you can't make unpatentable software patentable by dressing it up with unrelated facts. What about patentable software? I'm not being slippery - I mean that exactly as written... and so did the Supreme Court. You can't just take a bare mathematical formula and indicate that the output is used in an insignificant way. But if you take a mathematical formula and apply it in a useful context, then it is patentable.

santa

[Coneasfast]

just so you can see how retarded the US patent system is, see this santa hat patent

it seems to me that the purpose of the USPTO is not to grant patents but to make money from applications etc

i could probably patent my ass if i tried to

Re:santa

[smvp6459]

For me the search is down, but I know someone filed a patent for an ass-kicking machine. The sketches were great. So that's pretty close to patenting your ass.

Re: santa

[Black Parrot]

> i could probably patent my ass if i tried to

But would anyone pay you royalties for it?

Re:santa

[jcjones86]

> i could probably patent my ass if i tried to

You, sir, are in violation of my patent (PT #9546812321687987651321) on your ass! Please send a Paypal payment of $5 per subsequent viewing of your comment.

Thank you,

The Law Offices Of Conniving, Deceptive, and Crook, Ltd.

Re:santa

[mavenguy]

Well, just to show how retarded you are, the patent you reference is a Design patent, which is not a Utility patent.

Design patents cover Ornamental designs, as opposed to the software patents under discussion, which are regular utility patents.

There are sure enough examples of crap utility patents, but using a design patent an example of a silly patent isn't one.

Re:santa

[woods]

That's a design patent, not a standard utility patent (note the "D" before the patent number). It's basically just a registered design. There is no claim of improvement, functionality, or usability with a design patent. As a result, design patents probably don't stifle innovation much more than copyright does.

Re:santa

[Freexe]

It look pretty damn funny, http://www.dvorak.org/blog/?p=1233.

I'm still not sure if i can believe this, because if it is true then i think i would explode

Re:santa

[Freexe]

I love the quote:

Butt-kicking machine? Thats ridiculous!

This is clearly a shoe-polishing machine, and a damn fine one at that.

Re:santa

[Intron]

i could probably patent my ass if i tried to

Rejected - too broad

Re:santa

[Ruie]

i could probably patent my ass if i tried to

No you can't, but never worry - you have copyright on its imprint.

Re:santa

[Geoffreyerffoeg]

i could probably patent my ass if i tried to

Isn't that hat patent prior art?

Re:santa

[Hope Thelps]

There are sure enough examples of crap utility patents

Typical links:

Method of swinging on a swing

Method of exercising a cat

Re: santa

[smoker2]

> i could probably patent my ass if i tried to

But would anyone pay you royalties for it?

Sorry, Prior art

Re: santa

[BlueHands]

that maybe the only time a link to goatse.cx was ever justified. Made me laugh my ass off.

Re:santa

[wtansill]

just so you can see how retarded the US patent system is, see this santa hat patent

Yep -- that's an example of a "Design Patent" Saw a patent application once (granted, I think), for a dog biscuit shaped like a miniature t-bone steak...

Turning tide

[ClippySay]

/ You look like you are trying to turn   \
| the tide. Turning the tide is patented |
| by Microsoft and is not implemented    |
| yet. Shall I call the police? Feds?    |
\ BSA?                                   /
        \     ____
         \   / __ \
          \  O|  |O|
             ||  | |
             ||  | |
             ||    |
              |___/

Re:Turning tide

[xtracto]

Man, for a mintue I thought your comment had that goatse ascii art that is usually posted by the GNAA trolls in /.

Then I saw it was worst... it was clippy!!

Re:Turning tide

[Anonymous Coward]

Well that's stupid, good job.

Extremism.

[Anonymous Coward]

"According to the article, he has "questioned whether software patents should be granted, and has criticized the U.S. for allowing "anything under the sun" to be patented." Is the tide turning?""

Tide turning for most humans means going to the opposite extreme.

No

[ObsessiveMathsFreak]

"Is the Tide Turning?"

No.

This subversive will be dealt with quickly and harshly. Already the muck rakers are fervently searching for mud to fling at this commu-terrorist.

We are the IP companies. Fire your lawyers and prepare to be sued. We shall add your intellectualy distictive property portfolio to our own. Justice is futile.

This message brought to you in association with: "The USPTO. For a more prosperous, litigious future."

Re:No

[Anonymous Coward]

God, you're like a modern day George Orwell. Such wit! Such subtlety! May I bask in your verve? Please?

Re:No

[ObsessiveMathsFreak]

May I bask in your verve? Please?

No, I'm afraid that basking in my verve has already been patented.

Re:No

[CheechBG]

I like the cut of your jib, sir, and I would like to subscribe to your newsletter.

I almost forgot, I patented newsletters. Assuming you have one in circulation, I would need 15% of the gross in licensing fees.

Jib's still good though.

The tide isn't turning

[Bogtha]

The EU Commission are trying to push through software patents again. There's a write-up on Groklaw. I think their idea is to keep trying again and again until we get sick and tired of protesting it.

Re:The tide isn't turning

[ObsessiveMathsFreak]

I think their idea is to keep trying again and again until we get sick and tired of protesting it.

That's exactly it. The IP companies only need to get lucky once, the rest of us have to be lucky time and time and time again. Eventually, they'll get through, and then we'll be stuck with software patents forever, as to atempt to dislodge them would be "theft" of IP rights.

Re:The tide isn't turning

[Anonymous Coward]

Yep, that seems to be pretty much how he E.U (of which I am a member) works.

The treaty of Nice (a treaty to enlarge the E.U tp 25 states- now passed) was bullied though also.

It was rejected and then accepted literally only a few months later via propaganda.

The Treaty of Amsterdam which was accepted prior to that was legitimately passed at the first vote (this was a treaty for reduced enlargement which would be slower more careful progress).

I have no faith in a positive outcome regarding s/w patents. Te future is a combination of ludicrous software/hardware DRM. But, it may have positive results too...like maybe we could se and end to paying lawyers regarding this BS..one can only hope

Didn't I say I'd never post on this site again? Ok I changed my mind (that seems to be the order of the day) Ok - this IS my last /. patent...erm post

Miseung is much more important to me and Im tired of repeating myself here.

Re:The tide isn't turning

[Saib0t]

As CTO of a company, I was thinking that I'd send them my position on the matter... It looks like they're making this consultation as difficult to contribute to as they can get away with...

The thing is a PDF, you read it, write your answers separately and send them all to an email address.
I just read the damn thing and it's basically HEAVILY BIASED towards companies... Seeing that, I'm not sure my answer would do anything, but I'll do it anyway... take for instance this introductory exert from from the PDF:

The idea behind the patent system is that it should be used by businesses and research organisations to promote innovation.

Strange, I was under the impression that patents were there to protect INVENTORS, not businesses.

Pisses me off (pardon my french)

Re:The tide isn't turning

[zotz]

Which is why we need to go on the offensive to put them in this exact situation where one win by us is all it takes but they must win every time.

Any thoughts on the opening salvo?

all the best,

drew
---
http://www.ourmedia.org/node/111123
Tings - NaNoWriMo 2005 winning novel - first draft
Creative Commons Attribution-ShareAlike license
(think copyleft)

Re:The tide isn't turning

[Anonymous Coward]

Strange, I was under the impression that it's purpose was to enrich the public domain. Silly me.

Re:The tide isn't turning

[Saib0t]

Strange, I was under the impression that it's purpose was to enrich the public domain. Silly me.

The goal is indeed to enrich the public domain, but the means to do so is by offering "protection" to the inventor for the disclosure of his invention...

Re:The tide isn't turning

[Anonymous Coward]

Any thoughts on the opening salvo?

The threat should be to revoke the entire patent system.

Each time they push we push back a little harder, a little further, we should not settle for accepting the status quo, we need to gain a little ground each time they fail.

There is increasing public disquiet over Medical patents, they could readily be the next target.

Re:The tide isn't turning

[zotz]

"The threat should be to revoke the entire patent system."

Is this a viable and attainable threat? If not, it will not be effective. (Thoughts? How do we go about this? Should we?)

Other thoughts?

-----

Variable length terms based on field of endeavour?

"Intellectual property" (I seriously dislike that term) tax?

Specific working example requirements?

Near simultaneous discovery invalidation?

Patent office must keep an idea bank where people with ideas but not seeking patents can put their work to serve as a prior art repository?

Patents expire much sooner if not being exploited?

-----

One problem, is that most of these ideas do not speak directly to the issue of software patents.

all the best,

drew
---
http://www.ourmedia.org/node/111123
"Tings" - this is not a patented novel.

Re:Is the tide turning? No.

[Karzz1]

I concur 100%. If I see Bill Gates or Sam Palmisano (or even Darl McBride hhahaahahahaha) make these types of statements I might change my mind. However, until the powers that be (i.e. the ones w/money buying up and enforcing all these patents) take the necessary measures to fix the problem they have created, I don't foresee any improvement regarding software patents.

tides?

[revery]

has criticized the U.S. for allowing "anything under the sun" to be patented." Is the tide turning?"

Silly slashdot editor... the moon controls the tide.
The sun don't do nothing.

Re:tides?

[LadyLucky]

That's not entirely correct. Both the sun and the moon contribute to the tides. While the moon is primarily responsible, the sun has a secondary effect, which causes the spring and neap tides - where the peak to peak variation is maximized and minimized respectively.

Re:tides?

[ZachPruckowski]

the moon controls the tide. The sun don't do nothing.

Just to be a pain in the butt, I'd like to put out that the sun actually does affect the tide. It is much less noticeable then the moon, because it is so far away, but it does have an impact on the tides (and a technically measurable one at that).

Re:tides?

[s21825]

Actually the sun has a significant affect on the tides. The amplitude of the tide is much higher during a new moon and a full moon. This is because during these phases of the moon the moon and the sun are lined up with each other so their combined gravities pull the earths oceans together. During a half moon the moon and the sun's gravity pull at right angles resulting in a lower tide amplitude.

Re:tides?

[Jerry Coffin]

The amplitude of the tide is much higher during a new moon and a full moon.

Getting pretty badly off-topic, but as-stated, that doesn't seem (to me) to make a lot of sense.

I'd think the tide would be maximized at new moon, and minimized at full moon. The sun and moon are aligned in both cases, but during full moon, the moon and sun are on opposite sides of the earth, so the gravity from the sun and moon are in direct opposition to each other. Perhaps I'm missing something, but it seems like that should reduce the amplitude, shouldn't it?

If you wanted to get technical, there's also the tilt of the moon's orbit to take into account -- which normally causes a mild mis-alignment between the two. The truly maximum tide should be during a solar eclipse, and the minimum during a lunar eclipse, I'd think.

During a half moon the moon and the sun's gravity pull at right angles resulting in a lower tide amplitude.

At half-moon, they're at (roughly) right angles all right, but that shouldn't minimize the tide -- you should get two basically separate tides (one lunar, one solar), each at it's own amplitude, with neither reinforcing nor reducing the other.

Re:tides?

[Anonymous Coward]

Just to be more of a pain in the butt - he used a double negative - so he was technically correct. :-)

Re:tides?

[Chowderbags]

No. The side of the earth facing the moon is pretty obvious since it's closer to the gravity source, but when it's on the opposite side, it's high because it's so far from the gravity source that the force is far less. It's at a 90 degree angle that the vectors of the forces pull the water in a bit, causing low tides.

Re:tides?

[Wolfbone]

"I'd think the tide would be maximized at new moon, and minimized at full moon. The sun and moon are aligned in both cases, but during full moon, the moon and sun are on opposite sides of the earth, so the gravity from the sun and moon are in direct opposition to each other. Perhaps I'm missing something, but it seems like that should reduce the amplitude, shouldn't it?"

You are missing only the physics ;-) In the appropriate f.o.r in which to consider matters tidal, namely the accelerated frame in which the centre of mass of the Earth is at rest, the relevant fields can be written in the form, g_r = (3cos^2t - 1)Gmr/a^3 and g_t = -3Gmrcostsint/a^3 where a[m] is the mean distance to[mass of] the Sun (or Moon). Each of these tiny fields is weaker than average on the far side and stronger than average on the near side, causing an elongation effect along the centre lines, and because they are so tiny, it is their periodicity that really explains their effects. Assuming the ocean surface to be an equipotential surface, it's easy to see though that, for example, if the Sun and Moon are on opposite sides, their fields are acting in the same direction and that is what causes the spring tides. Only when they act at right angles do they (partially) cancel, and that is what causes the neap tides.

Re:tides?

[Wolfbone]

"Each of these tiny fields is weaker than average on the far side and stronger than average on the near side..."

Correction: the fields due to the Sun and Moon, not the tiny tidal parts referred to and derived from the quadratic terms in the potentials.

US patent system doesnt work

[Anonymous Coward]

I agree you should be able to patent a process. However the US system defines no logical limits on such a definition. The RIM Blackberry versus NTP is only one good example. NTP patended the process of sending communication to a device from a server, this is basically the concept of all TCP/IP traffic, however since NTP was successfull in making certain claims they OWN this process, and others must pay royalties to use it, regardless of how obivous it is.

--------------
www.kybe.com
^its an adult text and image search engine i'm working on.

Re:US patent system doesnt work

[ObsessiveMathsFreak]

I agree you should be able to patent a process.

I don't.

A process is not a tangible thing. It does not operate on specific components. no matter how specific you make it, a process is not a tangible, "hold in your hand" item. It doesn't do anything, not by itself at any rate. A process is an abstract concept, and patenting abstract concepts used to be disallowed.

It would be bad enough if the process was well defined, but with half the process patents out there, what was originally meant to be applied to computer chip manufacture is so vauge taht it could just as easily be used to sue a kid selling lemonade to passers by.

Re:US patent system doesnt work

[mavenguy]

Huh? That's not true, at least in the US. Processes have been patentable since, well, the first patent act. In fact, the very first patent issued in the us was directed to a method of making potash in 1790; the patent was signed by George Washington and Thomas Jefferson (No, it's not patent No. 1; the current utility series dates from 1836 IIRC).

Perhaps if you meant to say "abstract processes" like mathematical algorithms, which the Supreme Court of the US has disallowed. The debate, relative to software patents, is the scope of the adjective "mathematical" (Which, from your user id, I gather you have some informed opinions).

Re:US patent system doesnt work

[back_pages]

A process is an abstract concept, and patenting abstract concepts used to be disallowed.

I think your argument reduces the issue to absurdity.

It could be surmised that the original patent statutes intended that "process" should be read as "process of making something" or "process of changing something," and this is reflected in many years of patented processes for things such as making steel. I think it would be futile to argue against the patentable nature of a process for making steel - one needs to only look at the history of the Japanese steel industry versus the US steel industry in the 1970s to recognize the very real intellectual and capital advantage held by the Japanese during that period. I strongly doubt a persuasive argument could be made that the Japanese advantage, embodied in their process for making steel, was much different from the advantage of, for example, an improved computer chip.

Or more succinctly, the patentable nature of a "process" is extremely appreciated and deserved in technologies such as manufacturing, chemicals, and pharmaceuticals, where a company's competitive edge may lie in their investment in discovering a new way of making the product.

Where the US patent system has become so beleaguered is what is meant by a "process for making or changing something." Some have argued that changing the configuration of a computer system meets that definition, and judges have agreed. Some judges have pointed out that this is merely what computers do and is of no consequence in whether the invention, as a whole, should be patented. Those judges were a minority. The USPTO Board of Appeals and Interferences recently decided that a "process" is not required by any statute or precedent to be limited to a technological process. This gives rise to all sorts of questions - Can a person patent a method for winning an argument by beating a person into unconciousness with a large balloon? (This seems to meet every statutory requirement - the process has utility in winning the argument (35 USC 101), produces a similarly useful result (35 USC 101 precedent for processes), concrete result in that it will always work (35 USC 101 precedent for processes), and tangible result by creating a physical change in your opponent (35 USC 101 precedent for processes); I also allege it is new and non-obvious for no reason other than I strongly doubt there is any prior art for beating people into unconciousness with a balloon, nor is there any suggestion in the prior art that it would work (you should beat people with weapons, not harmless balloons.)

Hopefully, such an absurd patent or application will rise through the court system in the near future and we'll all get some clear guidance from the CAFC about why such a process should or shouldn't be patentable. Unfortunatel for your cause, I doubt that opinion will affect the patentability of software systems in the US.

However, these are the nuances of the current issues faced by the US patent system. There is not and never has been any legal basis for defining patentability separately for different technologies - not to mention it would be entirely futile. Ban software process patents and you'd suddenly have just as many applications for "computational machine configuration processes" or "methods of controlling an electrical signal (that suspiciously corresponds to the electrical outputs of a processor)". Software's biggest enemy is the pharmaceutical industry - they want precisely the opposite patent protections. It's up to you if you don't think any process should be patentable, but it's apparent that you're fighting against 1) written law, 2) legal precedent, 3) the entire Federal court system including the Supreme Court, and 4) all the financial interests of the US pharmaceutical industry. I'm hardly going to debate the philosophical merits of your argument, but good luck. You'll need it.

Re:US patent system doesnt work

[Anonymous Coward]

I also agree. European patent law as I had it explained to me by a patent lawyer states that processes are NOT patentable. Only the technology/hardware to implement the process is allowable.

AC

Here?

[hackwrench]

Where is "here" in your case?

Rank 'Em

[Tablizer]

Perhaps a compromise is for patent examiners to assign a rating to the patent. For example, C are weak patents, B are medium ones, and A strong ones. If all the "one click" and "same as 1940 except with a computer" patents get a C ranking then judges will be more likely to overturn them.

Judges don't understand technology and generally give the patent office the benefit of the doubt if they don't get something or are confused. A rating system will allow them more leeway to turn down questionable stuff.

Re:Rank 'Em

[poeidon1]

But who will decide the rating, everyone who files a patent application would be trying to prove it a Class A patent, and the patent office idiots will grant that as well

Re:Rank 'Em

[Tablizer]

But who will decide the rating, everyone who files a patent application would be trying to prove it a Class A patent, and the patent office idiots will grant that as well

Set quotas perhaps, just like instructors who award too many A's in universities that wish to be certified.

Re:Rank 'Em

[mOdQuArK!]

Perhaps a compromise is for patent examiners to assign a rating to the patent.

A different compromise might be to enforce a limited number of patents that can be enforced at any time (n patents, where n is some "reasonable" number that can be searched through by anyone to see if they are violating anything).

If a proper competitive-style selection process (auction process of some kind?) is institutionalized to select which applications are actually granted patent privileges, then most of the stupid patents should get weeded out since nobody would want to pay for a patent which is likely to get thrown out in court (and there will be lots of people trying to do so to free up more of the precious patent slots).

Re:Rank 'Em

[Tablizer]

A different compromise might be to enforce a limited number of patents that can be enforced at any time

Perhaps, but it may "feel" less democratic.

most of the stupid patents should get weeded out since nobody would want to pay for a patent which is likely to get thrown out in court

The stupid patents are persued because they are usually broad enough to corner a simple but profitable idea. The risk of being thrown out is not sufficient enough to dissway IMO.

Re:Rank 'Em

[mOdQuArK!]

The stupid patents are persued because they are usually broad enough to corner a simple but profitable idea. The risk of being thrown out is not sufficient enough to dissway IMO.

I'm talking about in the context of my "competitive selection" system. The winners aren't going to invest a lot of resources trying to win such a selection unless they're darn sure that somebody isn't going to be able to take the win away from them, through some clever or persuasive legal argument, or finding prior art.

Of course, you have to make sure that the total # of active patents is small enough to make "survival of the fittest" a meaningful part of the selection process. Right now we are essentially in the situation where there is no "competitive" pressure on patent "fitness" at all.

Notice to appear

[AeroIllini]

"Is the tide turning?"

Hardly. This judge is in the UK, and is clearly in violation of U.S. Patent #15648663245877954-5468, "Method for Citizens of Foreign Countries to Criticize the United States on Matters of Intellectual Property," filed by my company, Litigious Bastards, Inc., on November 3, 2002. He will be hearing from our lawyers shortly.

Re:Notice to appear

[Anonymous Coward]

...Litigious Bastards...
You work for SCO ?

Is the tide turning?

[Black Parrot]

The tide is never going to turn in countries that let themselves be ruled by lobbyists.

Re:Is the tide turning?

[ObsessiveMathsFreak]

The tide is never going to turn in countries that let themselves be ruled by lobbyists.

Unless we lobby Congress to put things right!!

Re:Is the tide turning?

[malsdavis]

"Unless we lobby Congress to put things right!!"

And thats where the problem arises. No matter how much you care about lobbying congress, a company with a few million to spare on lobbists and campaign funds is going to get further.

Re:Is the tide turning?

[Ixitar]

Maybe we should organize a "Million Geek March".

ducking to avoid thrown objects

Re: Is the tide turning?

[Black Parrot]

> Maybe we should organize a "Million Geek March".

Geeks don't exercise; no one would show up.

Re:Is the tide turning? No.

[MightyMartian]

The tide will only turn when the whole goddamn patent system comes screeching to a halt, when one can't write software that does any more than print "Hello World" without having ever facet of the program picked through by some species of patent lawyer, where development becomes so difficult that even the larger corporations begin to falter under the weight of idiotic patents and a moronic, ill-conceived patent system which was designed for a novel use of springs and cogs, and not for the arrangement and interactions of pixels.

The patent system has never been terribly great, but by allowing software patents it becomes an obstacle to development, a costly legal hurdle that has produced a business whose sole purpose is licensing. It's a cruel joke, but because so many of the big players like Microsoft, while being victimized by a corrupted patent system, are themselves players in that very system, using outrageous patents (like the FAT file system) as a means to actually stifle innovation and protect monopolistic practices.

Immediately thereafter ...

[athomascr]

According to the article, he has "questioned whether software patents should be granted, and has criticized the U.S. for allowing "anything under the sun" to be patented."

Immediately thereafter, the USPTO approved a patent on his questions.

Re:Immediately thereafter ...

[Anonymous Coward]

I wonder if someone could patent the process for the granting of patents. You know, it actually might go through.

Re:Immediately thereafter ...

[hakr89]

Immediately thereafter, the USPTO approved a patent on his questions.
Actually, that would be under copyright, not a patent.

Re:Immediately thereafter ...

[athomascr]

Since "anything under the sun" apparently now includes patents on fiction Slashdot: USPTO Issues Provisional Storyline Patent, I wouldn't be too ready to dismiss this fictional patent.

Re:Cheese-Eating Overturn Monkeys!

[ZachPruckowski]

Since when has the US gov ever cared what Europeans think?

Prior to Bush, we at least gave it weight. We bent over backwards for European politics in the Balkans (as we should have done, IMO), and Bush Sr. got a big coalition together (including our European allies) for Gulf War I. I have a feeling that once Bush is gone, the US will pay a lot more attention to Europe.

Who needs any patents?

[Anonymous Coward]

Any product worth patenting is to complicated to copy in a short time. A product that can be copied in a short time isn't worth patenting.

Re:Cheese-Eating Overturn Monkeys!

[Tablizer]

Based on my rollercoaster mod score, I think I need to clarify something. I am *not* saying that the US should not listen to Europe. In fact, I am not even making my preference known in that message.

I am only saying that the US has traditionally danced to its own beat such that what happens in the UK is not likely to make any big impact here. I am just pointing out historical patterns and using mild cheese humor to hilite this.

Why NOT allow Software Patents

[jglazer75]

It doesn't seem to me that the patent process is inherently ill-suited to software. In fact, it's a far better fit than copyright because of the nature of the resultant work. The patent system requires full disclosure of the invetion (the copyright laws do not) and the term is definite (20 years v at least 70 years for copyright). With the copyright system (the only system left for protection if patents are withdrawn), there is no disclosure, so you end up with DRM to protect access to copyrighted elements even though not all the elements are copyrightable. However, circumventing the DRM to discover non-copyrightable elements is either a violation of the law or it is a violation of the EULA that you agreed to. If the software could only be patented, the applicant would be required to disclose the entirety of the invention and thereby promoting science. It would, by definition, only allow those elements that are protectable to be protected and the patent would clearly disclose what those are. Copyright laws only act to obfuscate the promotion of science.

The problem with software patents is not that patenting is ill-suited but rather that discovery of prior art and laziness by the PTO have resulted in questionable patents being issued. Even this isn't a problem, because when challenged and scrutinized those patents that are bad are discarded and those that are good are upheld. The problem lies in the cost to litigate this - essentially ensuring that the "little guy" must bow to the pressures of the multi-national corporation.

Instead, maybe the PTO should adopt a cheap ex-parte reconsideration procedure (to my knowledge only the applicant can request reconsideration for a patent that is denied) that lasts for the lifetime of a patent where the challenger only needs to present some evidence of a patent-destroying issue. This would eliminate the huge costs of trying the patent in a court of law and make the process a little more fair. If there is evidence of non-obviousness or prior use for a "progress bar" the patent will destroyed, otherwise, why shouldn't the patentee be rewarded for his new and novel invention (it should be to his benefit that such an invention is widely used!)

Re:Why NOT allow Software Patents

[ObsessiveMathsFreak]

Mathematical algorithms cannot be patented.

All software programs are mathematical algorithims.

Ergo, software programs cannot be patented.

Disclaimer: The above relies on the issuing patent body being in some way competant. Does not apply to USPTO.

Re:Why NOT allow Software Patents

[tinkerghost]

The problem with software patents is not that patenting is ill-suited but rather that discovery of prior art and laziness by the PTO have resulted in questionable patents being issued. Even this isn't a problem, because when challenged and scrutinized those patents that are bad are discarded and those that are good are upheld. The problem lies in the cost to litigate this - essentially ensuring that the "little guy" must bow to the pressures of the multi-national corporation.

The problem is that most solutions that are obvious and derivative to people within a specialized community are insanely convoluted and novel to people even a step or 2 outside that community. As someone else just pointed out, NTP's patent can be interpreted to cover almost all Server/Client communication, yet it was granted AND upheld in the first round of legal action.

IANAL/A but I remember hearing/reading it averages about US$500,000 to invalidate the most obvious and stupid patent if it's contested.

I do agree that the time limit on patents is much more appropriate, but remember, the darn mouse just got the limits on copywrite protection extended. You think that if M$'s patent on pissing on customers was about to expire they wouldn't get it extended somehow?

Re:Why NOT allow Software Patents

[Rocko Bonaparte]

Sure, you could fight them in court, but that costs money. These patent farms could whack you with a ton of patent infringements, and some will find it easier to roll over as opposed to fight it in court.

Re:Why NOT allow Software Patents

[Jerry Coffin]

The problem lies in the cost to litigate this - essentially ensuring that the "little guy" must bow to the pressures of the multi-national corporation.

Actually, the opposite tends to be true. The bad publicity associated with suing "little guys" tends to prevent big companies from suing. By contrast, lots of the little guys sue big companies all the time -- and quite a few make a good (sometimes almost unbelievable) living out of it too.

If you want a serious example, look up "Jerry Lemelson". In case, you want to see a serious example of how badly wrong Wikipedia can get things, look him up there to start with (if you know anything about him, it'll give you a good laugh).

Though he got hundreds of patents (and they may still be issuing) the only thing he ever invented (and I'm not sure he invented it, but he certainly used it a lot) was the submarine patent -- he'd keep patents "in the system" for years, often even decades. He'd write an initial patent that was exceptionally broad and vague, but then keep writing amendments to it for years at a time. Then, when somebody invented something roughly similar, he'd rewrite his old patent (that was still in the system) to cover what they invented, and claim he invented it decades earlier.

Just for one obvious example, he originally wrote a patent on a computer system. Later, when TI invented the microcontroller (i.e. CPU and peripherals on one chip) he rewrote his old computer system patent by basically adding "and...uh...all of that is on one chip." It took quite a long time, but eventually this did get sorted out in court -- the court fuled that his rewritten patent was invalid because the original application showed no evidence that he'd originally even contemplated what was really the important part of the invention -- moving the peripherals onto the same chip as the CPU.

TI did the right thing, fighting this all the way through court to get a bogus patent invalidated. Most companies, however, won't do that -- if the patent holder offers to settle for (say) half what they'd have to pay for the patent litigation itself, they'll just pay the money, and move on.

Given that a patent case will usually cost millions of dollars, it's pretty easy for "little guys" to go and basically blackmail big companies into giving them a few hundred thousand dollars (or so) with even a thoroughly bogus patent. The afore-mentioned Jerry Lemelson did exactly this to the tune of billions of dollars. Despite the money he made (and his estate still makes, as I understand things) he did stay a little guy in terms of (complete lack of) integrity though.

Re:Why NOT allow Software Patents

[freidog]

That's like saying you can't patent the implementation of a microchip because all it is is mathematical formulas.

Software adapts mathematics (be it simple boolean operations or complex searching and sorting algorithms) to a specific form and function. If an adaptation was sufficiently unique, non-obvious and usefull, then it might be reasonable to patent it.

Now, I don't support software patents, mostly becuase of the inept patent system we have.

Re:Why NOT allow Software Patents

[jglazer75]

The bad publicity associated with suing "little guys" tends to prevent big companies from suing.

For each instance where this is true, there are an equal number of instances where the "little guy" is strong-armed by the big guys. In any event, the point of the original post remains true - the cost of litigating patent validity between parties is high; it makes more sense to offload those costs to the PTO which has the internal mechanisms in place to make review more efficient.

If the costs to litigate validity are significantly reduced, the blackmailing that occurs on both sides of the patent would be reduced. Obviously, the PTO would only answer the question of validity, courts would still decide infringement issues.

Re:Why NOT allow Software Patents

[deathy_epl ccs]

he did stay a little guy in terms of (complete lack of) integrity though.

By this argument, is there anything BUT little guys?

Re:Why NOT allow Software Patents

[ObsessiveMathsFreak]

That's like saying you can't patent the implementation of a microchip because all it is is mathematical formulas.

A microchip is a physical assembly of circuits, transistors and silicon. It performs a physical function. Like everything else its operation is based on physical and mathematical laws. But it is not a mathematical algorithim.

Software adapts mathematics (be it simple boolean operations or complex searching and sorting algorithms) to a specific form and function. If an adaptation was sufficiently unique, non-obvious and usefull, then it might be reasonable to patent it.

It isn't reasonable. If you assemble a collection of mathematical algorithms into a larger algorithim, you still have a mathematical algorithim. Therefore, you cannot patent it.

Re:Why NOT allow Software Patents

[Anonymous Coward]

Copyright, despite all its other flaws, is best suited to protect software. It would protect you from others stealing your source outright, or using it with minimal modifications. However, it would allow anyone to write a program with the same functionality. Better still, that program could even be fully compatible at all the interfaces.

As somebody else pointed out, patents are a device for having an idea, waiting until someone works out the nitty-gritty details, then suing him.

Re:Why NOT allow Software Patents

[Jerry Coffin]

For each instance where this is true, there are an equal number of instances where the "little guy" is strong-armed by the big guys.

I'm not at all sure I believe that. From what I've seen, "little guys" often get cease and desist letters related to (alleged) trademark infringement, but that's a whole different story -- a trademark holder is legally obliged to prevent the trademark from falling into common use, or they can (and will) lose protection on the trademark entirely.

Of course, it's open to question exactly what constitutes "strong-armed" -- certainly a company that holds a lot of patents will often send out letters telling people when they believe their patents are being infringed. Usually, these are sent primarily to other relatively large companies though -- anybody making less than $50M US per year or so would most likely only receive one by accident.

The reason for this is pretty simple: if they start something, they have to be prepared to finish it -- but they're not going to spend a million dollars on a lawsuit unless they have at least some possibility of it paying off, and patent royalty rates are typically around 1 to (maybe) 2 percent or so.

So, if they were to sue a $5M US per year company and win (and get their patent applied to the whole revenue stream), it would still take roughly 20 years worth of royalties (i.e. the entire life of the patent) just to break even on the lawsuit itself. You don't become a big company by investing a million dollars into something that will take 20 years just to recoup your investment, and stands absolutely no chance at all of ever making a profit. Of course, that assumes the target company makes the infringing product for the next 20 years -- which is a really lousy bet in anything high-tech at all. Realistically, if it won't break even within a couple of years (at most) it's just not worthwhile, because much past that the market is likely to change, the product become obsolete, etc. Of course, it's possible that the product may grow a lot during that time as well. If so, that's when the patent will be licensed -- to somebody who's not really a "little guy" anymore...

Re:Cheese-Eating Overturn Monkeys!

[Tablizer]

and Bush Sr. got a big coalition together (including our European allies) for Gulf War I.

That was to stop and undo an outright invasion by Iraq of another country. This time is different because it is not tied to any (confirmed) huge sin by Saddam.

(Actually, what the US should have done in 1992 is annex the Shiite part of Iraq, annex the Kurd portion, which sort of happened by itself anyhow, and leave the Sunni's to stew with Saddam. We would end up with what we will have soon without the bloody civil war.)

How long does it take to become a patent lawyer?

[RouterSlayer]

So seriously how long does it take?

I am really serious in getting into this field.
because it seems like an incredibly lucrative business!!!

seriously!

so is there a fast-track to this? or something?
mail-order/web learning, anything?

images working?

[Mateo_LeFou]

i'm trying to look at the images/drawings for the hat, and it doesn't work. not even if i switch to the USPTO's favorite browser (blue e)

Fat, Ignorant American Assholes

[Anonymous Coward]

They sure seemed to care when Germany decided to destroy the jews in Europe... they sure seemed pissed off when Russia (also europeans) decided Communism was the way to go, in recent times they sure didn't like it when France opposed invading the WMD-free Iraq! I'd say there's a pretty good chance the US gov cares!

Re:Fat, Ignorant American Assholes

[Bezben]

Thats funny, I was always under the impression that the US got into world war 2 after they were attacked, a few years after it started... My history has always been shakey though.

Re:Fat, Ignorant American Assholes

[Anonymous Coward]

You wanna go? I'll even give you the first punch!

--GW

Re:Fat, Ignorant American Assholes

[Anonymous Coward]

You must have been watching that movie where the US capture the German Enigma.

Hollywood is busy rewriting history as we know it.

Re:Fat, Ignorant American Assholes

[cheaphomemadeacid]

Wow! A war where the U.S was actually attacked before sending troops, too bad it's 20ish wars ago...

Re:Fat, Ignorant American Assholes

[Archibald Buttle]

This is of course a simplification.

The US effectively only comitted troops to World War II after they had been attacked.

Before that time though they were still involved in the war effort, helping to manufacture equipment required and shipping that across to the UK. That remained the limit of their involvement until Pearl Harbour though.

Re:Cheese-Eating Overturn Monkeys!

[ZachPruckowski]

That was to stop and undo an outright invasion by Iraq of another country. This time is different because it is not tied to any (confirmed) huge sin by Saddam. You misunderstand me. I meant that previous presidents paid attention to what other countries had to say. I'm not criticizing European nations for not going into Iraq, I think they made the right call there.

Re:Is the tide turning? No.

[umeboshi]

God has a patent on the "Hello World" program. We are still waiting for Him to finish His "Goodbye Cruel World" program.

Re:santa hat perfectly legitimate DESIGN patent

[equack]

The USPTO grants both DESIGN patents and UTILITY patents. They are completely different animals. A design patent protects only the ornamental appearance of an invention, not its utilitarian features. The santa hat received a DESIGN patent, which is perfectly reasonable. It provides stronger protection against knock-offs, clones, and imitations.

Re:Cheese-Eating Overturn Monkeys!

[Tablizer]

I am not sure the first golf war is an example of that. If anything the US was pushing the idea as much as anybody, perhaps to protect the oil status quo.

Patents aren't the problem

[Anonymous Coward]

Patents are not the problem. It is ill-equipped patent reviewers and weak reviewing guidelines that are.

Innovative work expressed in software (a virtual machine) should have the same protection as any innovative work expressed in mechanical form (a physical machine). It is the non-obvious innovative work part that the patent office seems to not understand when it comes to software as well as they do when it comes to physical machines.

IMHO, what is needed are stricter rules, guidelines and use of software experts to review software patents.

Re:There are a few good patents as well (No!)

[forkazoo]

Many of us *don't* consider something like RSA to be patentable. It's an algoritm, basically just like using a**2 + b**2 = c**2 to calculate the proper length of a diagonal when building a house. Most people would scoff at the idea of patenting the pythagorean theorem, and making home builders everywhere pay a royalty to some random guy who patented it.

For some reason, people are more willing to accept a patent on an encryption algoritm. But, it is basically the exact same thing. Some math, and a description of what to do with it. That's all an algorithm is. Patenting math is non-sensical to a reasonable person. It has been possible to invent and publish new math for years without the benefit of patent protection. So, the notion that patent protection is somehow a prerequisite for the advancement is utter poppycock.

Personally, I have no problem with patents on things. But, algorithms patents should be abolished completely. When you start trying to figure out where to draw the line between pythagoras and RSA, you realise that you should just put the pen away.

Re:Is the tide turning? No.

[Anonymous Coward]

I concur 100%. If I see Bill Gates or Sam Palmisano (or even Darl McBride hhahaahahahaha) make these types of statements I might change my mind.

Bill Gates in 1991: "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today. ... The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors."

He says the exact same thing, albeit from the opposite viewpoint. The judge asks "why do we need software patents", Bill Gates answers "exluding future competitors", both statements question wheither the answer to the why do we need software patents question is "to encourage innovation", have you changed your mind yet?

Tide not turning

[Random BedHead Ed]

No, the tide is not turning, as the Microsoft FAT patent nonsense has demonstrated. There is much outcry on both sides of the pond about software patents. There are frivolous lawsuits in the US, protests in Europe. And now an EU judge has said that patents shouldn't apply to software. So what? This policy, at least in the US, is not determined by public sentiment, nor by obvious negative experiences with patenting software. It's determined by the Congress, and they are in the pockets of media, technology and pharmaceurical corporations. Jack Abramoff's surrender to the Justice Department, which relates directly to Congressional corruption, will have more impact on the issue of software patents than this EU judge. When the dirty money comes out of Capitol Hill, and only then, will we see software patents disappear.

Incentive

[Anonymous Coward]

If you can't patent code, where is the incentive to research new algorithms.

Re:Incentive

[Anonymous Coward]

If you can't patent code, where is the incentive to research new algorithms.

The fame of having your name immortalized forever in Computer Science textbooks?

A* search algorithm by Peter Hart, Nils Nilsson, and Bertram Raphael.

Bresenham line algorithm

Floyd-Warshall algorithm

etc...

Re:Incentive

[Jerry Coffin]

If you can't patent code, where is the incentive to research new algorithms.

You can't patent code -- you can patent (for exmaple) an article of manufacture that embodies the code, a method of operating a computer that happens to depend on code, etc.

That, however, is more or less beside the real point. The point of the patent system isn't primarily to encourage research, inventions, etc. Its point is to encourage people to publish their inventions, and to place them into the public domain in return for exclusive rights to them for a short time.

For those who've pointed out that software technology progressed before patents were allowed on software, I'd point out that while this is at least partly true, there are other things to keep in mind. At that time (up through about the seventies or so) software mostly wasn't an industry in itself. Most software was developed by hardware companies like IBM as what they had to do to sell their hardware. Since they saw the hardware as the real product, and the software as having no real value in itself, it was pretty easy for coders to publish what they did.

If there weren't patents today, I'm reasonably certain the situation would be a whole lot different. IBM (to reuse the previous example) has a software business that makes billions of dollars in itself. If they couldn't patent their inventions in this area, my guess is that they would not just publish them and given them away to everybody. Instead, they'd keep them secret.

The patent system is basically an investment on the part of the public. We don't have to put in money (directly) up-front, but we give the inventor some value, and in return we get full rights to their invention (eventually).

As far as bogus patents go: it's true that there are quite a few patents that are basically nonsense. Many aren't really original, and some don't even work at all (e.g. there are currently some in faster-than-light communication). That's more or less par for the course in investments though -- people diversify investments largely because they know at least some things they invest in are going to be complete losers. In addition, keep in mind that what we've given up is the value of the patent for a period of time -- if the patent has no value in the first place, we've given up exactly nothing. In fact, we get even a slightly better deal than that -- the patent office is profitable, so every time a completely bogus patent gets issued, our tax burden (and gov't debt) is reduced by some tiny fraction of a percent.

Admittedly, if you're in the position of the EU (for one example) you're pretty much getting the best of both worlds -- since most real inventions will be patented in the US anyway, you get the benefit of it being published, but without having to give the inventor anything in return.

Given that what we're investing is a limited period of exclusive rights, the real question (IMO) is mostly whether we're investing the right amount of time. This is basically a balance -- if the period of a patent is too short, the inventor is more likely to maintain something as a trade secret instead of patenting it. If the period is too long, we're increasing the cost, and decreasing the payoff. The question is how soon the invention is likely to become obsolete -- if most are obsolete before their patents expire, we're getting a lousy deal.

Yeesh

[rumblin'rabbit]

You never could patent code - you patent inventions. Code is copyrighted.

In every discussion like this there is always somebody who don't know the difference between patents, copyrights, trademarks, and trade secrets.

Addressing your actual point, up till now the development of computer algorithms has progressed very nicely without much patent protection. It's a bit like saying, "without patent protection, where's the incentive to develop new physics?"

MS on patent reform

[badriram]

HEre is what Microsoft is pushing for

Sure it does account for no patents at all on software. It does call for better patent quality, a faster and more open system.

Re:MS on patent reform

[jZnat]

So when we find out a new proposed patent that is inherently bullshit, bitching about it on Slashdot can actually do something! Wow, I like this idea (for now).

Re:How long does it take to become a patent lawyer

[RouterSlayer]

who's the moron that marked this redundant?
How is it redundant?

it's a serious question, on a serious topic.

there have been no answers to this.

so to the asshat that marked it down, get a clue!

Yes, the tide is definitely turning.

[CrystalFalcon]

Yes, the tide is definitely turning.

A year ago, this would have been considered ludicruous and impossible. Now it's for real.

Re:Yes, the tide is definitely turning.

[Ztream]

It is still ludicruous. Sweden is bound by international treaties and probably EU law, things which you cannot just rip apart without dire repercussions.
If Piratpartiet *does* get into parliament and get any kind of influence (could happen), it would most likely be because they are the Ny Demokrati of the year. Most people have no clue about or opinion on such complex matters as intellectual property. Also, no other party would form a coalition with them.

I *do* share their goals of abolishing intellectual property, but I doubt it is something you can do in less than 50 years. Also, I feel Piratbyrån (from which this has sprung, I'm sure) has been a childish embarassment, seriously harming the cause. They aren't getting my vote.

Re:Yes, the tide is definitely turning.

[typical]

They're never going to be anything other than activists.

Eliminating software patents -- okay, they might get some votes there, from at least a limited set of people.

Copyright strength reduction *might* get some people onboard, though I've found that outside the software world, people tend to not understand the negative implications of copyright that lasts over a century. I had real problems convincing someone that if they create a character in a book or something, they should not have a lifetime exclusive monopoly over content containing that character.

Copyright elimination is not going to pass. Unless they have a serious competing plan for funding content creation, they are not going to get enough mainstream people onboard. It would cause a massive amount of business disruption.

It *does* show that there is a sizeable group of people that is pissed off at at least some of the issues, though. I've seen a number of legislators pushing back against the RIAA (mostly after the press ran a couple national stories about that nine-year-old girl being sued for tens of thousands of dollars, though, so I'm not sure how much of this is just due to short-term emotion).

Who needs patents?

[mackaykl]

UK Judge: Who needs software patents?
Me: Who needs patents?

I'll admit I know zero about IP, but as far as I can tell a software patent is simply a subset of patents, so if you can answer the second question, you'll have you answer for the first. Is the patent really the problem?

Why should anyone be able to patent anything? What differentiates a piece of hardware from a piece of software, aside from the medium in which it is presented?

Re:Who needs patents?

[daverabbitz]

>What differentiates a piece of hardware from a piece of software, aside from the medium in which it is presented?

Personally I'm against software patents and indifferent to patents in general, but I guess the big difference is Software is already restricted by copyright, that and software patents are quite often (successfully) filed on trivial or obvious ideas.
Also if you've read a software patent, they go against the principle of patents, full disclosure of mechanism. Most s-patents I've read are worded such, that they could cover 10-20 different things, and don't show you how the Licensor does even one thing.

Re:Who needs patents?

[mackaykl]

> Also if you've read a software patent, they go against the principle of patents, full disclosure of mechanism. Most s-patents I've read are worded such, that they could cover 10-20 different things, and don't show you how the Licensor does even one thing.

Interesting, I suppose I'll have to answer you with yet another few questions:

While 'obvious' patents are an issue everywhere, why is it that it seems to be a much larger issue with software?
Do the technical people not exist in order to determine if some piece of software is patentable?
Why doesn't the patent office follow the same stringent rules on patenting software as they do for other disciplines?
If the patent offices were to follow these so-called rules, would the problem disappear?
Should software be copyright? Isn't hardware in a sense copyrightable as well?
I could design the hardware in say VHDL, or whatever, copyright that, produce a piece of hardware on that design and then patent the chip, could I not?
Is it the documentation that is being patented for Hardware, and thus the documentation (assuming any were done) should be the item submitted for patent?

Just a few thoughts I suppose...

Re:Who needs patents?

[daverabbitz]

First of all IANAL, all of what I wrote could be complete BS.
I don't even know if you expected answers, but here goes.

>Interesting, I suppose I'll have to answer you with yet another few questions:

>While 'obvious' patents are an issue everywhere, why is it that it seems to be a much larger issue with software?

I don't have an answer to that question.

> Do the technical people not exist in order to determine if some piece of software is patentable?

With regards to interfaces, I would argue that it would be (relatively) straight-forward to determine if it was innovative.
On the other hand, determining if an algorithm had ever been used in math, or software, seems practically impossible.
Perhaps a (non-ideal) solution, would be to have some kind of public veto system. Better still would be no software patents.

> Why doesn't the patent office follow the same stringent rules on patenting software as they do for other disciplines?

I wouldn't know, perhaps they do? Certainly I'm not the one to ask. If you're a US citizen (I'm not), perhaps there's someone you could write to, but probably not.

> If the patent offices were to follow these so-called rules, would the problem disappear?
I don't think so, or more, I don't think a full prior-art search is possible due to the nature of software (workings are obfuscated ((well at least in proprietary code, which I imagine has ~100% of patent holdings.)) ), and shear volume of software in existance.

> Should software be copyright? Isn't hardware in a sense copyrightable as well?

On one hand all control of distribution of information is artificial and against the nature of information and people.
On the other hand there is a lot of software that is written to make money, that (probably) wouldn't of been written had it not been for copyright.

I myself try to use as little proprietry(sic?) software as I can make do with, and wouldn't even consider writing code that wasn't free.

>I could design the hardware in say VHDL, or whatever, copyright that, produce a piece of hardware on that design and then patent >the chip, could I not?

yes, but (assuming you didn't distribute VHDL) the copyright wouldn't buy you anything, as without the patent, someone else could make something else that functions identically without looking at your source, and hence wouldn't be infringing your copyright.
However I think there's something called the "Chip Protection Act" or some such, that makes it illegal to copy someone elses chip design by reverse engineering, which kind of makes the case moot.

>Is it the documentation that is being patented for Hardware, and thus the documentation (assuming any were done) should be the item >submitted for patent?
The way I understand it is that a patent covers method (and function?), i.e. someone can't do it the same way as you without paying you royalties, but again IANAL, IANAUSC (US Citizen).
> Just a few thoughts I suppose..
Just a few more, perhaps I'm just rambling, who knows, not me.

Re:Who needs patents?

[cjb110]

Roughly, patents are supposed to protect the inventors. They spent time 'inventing', they need paying for that time.

I think the problem is that companies can now have patents...how come? a company is dumb, it can't think for itself. Patents should only be given to the inventor(s), and should stay with them.

People will argue that the company paid the employee though, true, but there are already laws and ways for the company to protect this investment (copyright, contracts etc), they do not need to be the patent holder.

Patents are suffering from the same affliction almost all laws do, they are always amended or added to, never re done from scratch to properly cope with the changing requirements. OT but a good example of this is: we already have (in the UK) dangerous driving laws, why do we need a specific crime of speeding?

Re:Is the tide turning? No.

[Anonymous Brave Guy]

When the patent process actually changes, THEN you can say the tide is turning.

Erm... We don't want the process to change over here. Right now, software patents are of dubious value at best here in Europe, and one of the few things our European overlords have got right recently is kicking out the attempt to change that.

Norton

[Anonymous Coward]

Taken from the Symantec website:

Third Party Trademarks
Peter Norton, Peter Norton's stylized signature, and Peter Norton's crossed-arm pose are U.S. registered trademarks of Peter Norton.

Comment removed

[account_deleted]

Comment removed based on user account deletion

There are a few good patents on amnesia.

[Anonymous Coward]

"A method is a method - it can be embodied as a circuit, or as a chemical process, or as a machine with moving parts, or as software. It's still the same method. EEs and MEs and CSs have recognized this as a scientific truism for decades. It's kind of odd that when it comes to patents, people want to start gerrymandering."

Bingo! Now I'll patent a method of Slashdot collectively forgetting your post, and repeating the same old arguments next time patents are mentioned. I'll make millions!

Strange....

[Anonymous Coward]

>We bent over backwards for European politics in the Balkans

Bill Clinton kept saying that it was a European problem and they should solve it. Any proposal by any European simply led to Bill Clinton saying that if he were Milosevic he would certainly not agree, bad proposal, go solve it some more. Lather, rinse, repeat. That ain't bending over backwards, that's stoking the fire, that is.

There really isn't too much difference between Bush and Clinton apart from Bush being unable to do sneaky.

Re:Strange....

[Tablizer]

There really isn't too much difference between Bush and Clinton apart from Bush being unable to do sneaky.

Indeed! Clinton knew how to thumb his nose at Europe without *appearing* to be an ahole. W on the other hand....

Re:That's right

[Anonymous Coward]

Yeah, very fat and ignorant. But for disgrace of all...they 're in all around the world. :s

Re:There are a few good patents as well (No!)

[Wolfbone]

Thank you for saving me from the irksome task of having to write yet another long and angry comment about the good 'ol RSA patent ;-)

Obvious patents

[bdwoolman]

"That type of patenting must be stopped and all previous such obvious patents reversed."

Really agree with you. This has to stop or it will ruin innovation. Patents and trademarks were developed to launch entrepreneurs, not protect vested interests. The whole system has become elitist and un-American. Benjamin Franklin hated patents. He was an open source type of guy. Never took out a patent on his stove. Wanted it for the public good. (Not that his original worked all that well.) But the lightning rod did. Sure hope the worm is beginning to turn.

I am not against patents in general, but this torrent of garbage patents is just legal landfill.

So, has anyone patented sex, yet?

[sinewalker]

in a similar vein, if genes themselves are patented, are mothers and fathers everywhere guilty of patent violations just by pro-creating?

informational patents are just bunkum. No mater how I look at it, I can't justify patents for software "inventions" or science "discoveries". When is the benefit to the inventor supposed to cede to the greater good, as originally intended in patent law?

correct

[Anonymous Coward]

You are correct here: "Since our trade deficit is already deep in the red". Just goes to prove that switching from a tangibles based true wealth creation economy like we used to have was a *very* bad idea. Very. Bad. Good for the elite rich, bad for everyone else, but it sure is easy selling magic beans to the rubes for their cows, isn't it, when all the high level "experts" in government and wall street are in on the scam and profit from it.

  The proponents have had-by admission- "decades" now to prove their point that the "new economy" would make us all richer somehow, and the results are as you see it, record deficits, record bankruptcies,a severe lessening of national security, an overly inflated currency (so bad they are going to stop reporting most of the M3 stats), and decent jobs that paid well with benefits being replaced with lesser paying jobs with little or no benefits. Welcome to the billionaire globalists' wet dream, the rape of the US middle class and the Walmart-ization of America. The greatest transfer of accumulated wealth in exchange for debt in the history of the world, dwarfing the great depression and it isn't over yet, and most of those raped flopped down and spread willingly, because they got sold the greed-based scam fairy tale by their "leaders". And now they are too embarrassed about it to admit they were *conned*.

    Here, consumer have some more credit, your children won't mind paying, will they? Oh, no money? No job for them? No problem, we have many diverse job openings in todays "exciting external reactionary security force" listings...

Re:correct

[Anonymous Coward]

The evolution of global economy and trade:

To secure your income,

1. Make tangible goods and ship them abroad. If you don't get money, you don't give goods. If they try to pry them anyway, you either whack them or, if they are prevalent, never ever ship goods there again. Income secured.
   
   Now, you see, you are constantly loosing money on expenses of actually repeatedly producing tangible objects, as well as shipping them (they have mass and dimensions)
   
   
2. Make intangible goods and ship them abroad. If they don't give you money for it, whack them (or twist someone's arm to do that for you). Income secured.
   
   Well, it is now better, smaller expenses per item and even greater income (no direct competition allowed), but you still have expenses of actually producing intangible objects (even though just once per each original) and you have new expenses related to whacking (upkeep of military). Therefore, another optimisation is due:
   
   
3. Just straightforward demand money (or goods you would buy for it) from abroad. If they don't give you what you wanted, whack them. Again, income secured. It doesn't get much better then that. Anything nonsubstantial is removed from the scheme, providing for theoretical maximum of productivity.

Re:correct

[tambo]

Just goes to prove that switching from a tangibles based true wealth creation economy like we used to have was a *very* bad idea.

One has nothing to do with the other. We didn't abandon tangible goods in favor of intangible goods. Rather, we lost tangible goods because manufacturing costs were too high. Evironmental compliance, minimum wage, unemployment, workers' compensation - these are costs that business must pay to manufacture within the U.S., but not abroad.

(This is in no way a criticism of the U.S. for that result. I harbor much enmity for foreign countries that are willing to sell out their populations in order to attract corporations. The growth of democracy across the world might help to level the playing field, but it'll take a century.)

In short - the tangible goods market collapsed all on its own. If anything, intangible markets have been used to fill the void. So I maintain: if you want the U.S. to cannibalize its global IP stance and dominance, then you're going to have to propose some other kind of economy to fill in the void.

The proponents have had-by admission- "decades" now to prove their point that the "new economy" would make us all richer somehow, and the results are as you see it, record deficits, record bankruptcies,a severe lessening of national security, an overly inflated currency (so bad they are going to stop reporting most of the M3 stats), and decent jobs that paid well with benefits being replaced with lesser paying jobs with little or no benefits.

We certainly have a host of economic problems. I think that many of them are very directly connected with (1) our wastrel federal government spending and (2) employers' widespread breach of the social contract with employees. I don't think that any of this has to do with what kinds of goods our economy is producing.

Do you have any evidence that modern corporations producing tangible goods treat their employees any better than corporations producing intangible goods? If not, then your argument linking intangible goods with our downtrodden employment market is spurious.

- David Stein

Stallman explains the danger of software patents

[cdn-programmer]

You can find many answers here: http://lpf.ai.mit.edu/Patents/patents.html

The text of some of the talks is online in the links.

If you wish to watch a video of the talk he gave in Calgary 2005 May 18 then you can find it here: http://www.gnu.org/philosophy/audio/audio.html#CCA LG (its one of the TOP speeches! The TOP of the TOP in fact. hint - look at the top.)

The complete list if talks is found here: http://www.gnu.org/philosophy/audio/audio.html

I would post an answer to the question but to be thorough would require a couple hours and I think Stallman has said it better than I can - so watch the video.

-----------------

In answer to the quesiton of why software patents are more serious than hardware patents - a very simple explanation is that software products incorporate many more ideas than are incorporated in a hardware product. Typically very large companies are behind the manufacturing of hardware and they often can afford the protracted litigation process whereas software companies are small and often undercapitalized.

However the hardware issues also exist and an example of this is the latest patent attack on Toyota on the variable speed transmission used in the Prius. First patents on this idea were issues in 1916 or 1918. Yet a superficial analysis suggests that using two electric motors to drive the planetary gears is considered innovative enough to warrent a patent in the 1980's. Toyota may get around this because they used a gas motor and an electric motor in the Prius.

But this illustrates how silly the patent system has become.

Its not about what is necessarily provable in court - in many respects it is about how much of a financial burden can be imposed through the threat of litigation and for how much the victim can be milked.

A cynic would observe the business of law is conflict and litigation and creating an environment which encourages litigation is good for [the legal] business. Whether this benefits society is not taken into consideration any more than any parasite questions whether its activities are a benefit to its prey. A related example of this phenominon is that non-payment of invoices for goods delivered is considered criminal fraud in Europe whereas in North America it is considered civil and matters that could and should be handled by police in a 1/2 hour end up dragged through the courts for close to a decade at a cost of 10's of 1000's of bux.

Part of this is the legal community serving its own self interest of course. But there are other factions who benefit by supporting a broken patent system and among these we have those who are looking for ways to prevent fair competition as well as those who are just looking for victims to shake down.

The real problem with software patents...

[Rophuine]

If I invent a new device (a physical "thing") I may patent it. Prior art (in the form of other "things") is searched, and if what I have is truly innovative, and fulfils some other criteria, I may be awarded a patent on it.

While patent law was originally designed with this concept of "physical things", the wording (which was clearly intended to ONLY cover "physical things") has been twisted and re-interpreted to apply to other things. There was a time when this wording was circumvented to allow software patents with such phrases as "a processing device (computer) with an organisation of bits in executable memory such that the device accomplishes...". Now, even this thin veil is usually dispensed with, and software patents are more blatant. But all of that aside...

The REAL problem with software patents is that the "prior art" test is virtually impossible to make. The sheer volume of closed-source software out there makes it impossible to truly search prior art, and even if the search were to be limited to open-source plus closed-source contributions to a "prior art" database, an automated search would be virtually impossible, and the task is too large to be done by people-reading-code. The prior art requirement cannot be satisfied reliably, and this is why software protection should be done with copyright (which was originally intended for things like software), not the patent system (which wasn't).

Another large obstacle to the application of patents to software is the problem of testing "obviousness". Software fields are becoming so incredibly diverse and specialised, and invention so technical, that it would often take a highly-trained expert in the particular field of a patent application to differentiate between "trivially obvious" and "stunningly innovative", much less sort out the shades in between. The patent office cannot maintain such a diverse group of experts.

The patent system works (on "things") because it's a good system, well suited to what its (originally intended) purpose. For software, it is an abominable, unworkable solution. The world needs something else, and the majority of the software industry ticks along quite well on copyright. Public innovation is handled by open-source communities, and the leak-out of technologies from the large research giants. Yes, of course it happens... When I leave my current employer, I will take a large chunk of information learned there to my next one, and I'm already bringing it to my open source work. I don't copy code (that would violate copyright, the system meant to protect software), but nobody has the right to prevent me from using what I learn in one place elsewhere (that's how innovation and future development is ensured).

In short, the software community has no use for software patents. There are some individuals and companies who do, but SPs do not further the common good (if you read some of the foundation works of patent law, you will see that the entire point of issuing them is to promote the common good by providing incentives for researchers and inventors to publish their findings).

And no, patent litigation attorneys do not contribute so greatly to the good of the world that we should protect this system purely for the fees they can earn from the overly litigious environment which the "Software Patent" system ensures.

Re:Anything Under The Sun That Is Made By Man

[saosce]

Just a moment - can anyone explain how any software (given that "software" essentially just means algorithms that require a computer to execute) could be anything but "abstract ideas"?

Re:Is the tide turning? No.

[BaseSequence]

It's in Beta.

The Tide

[Anti_Climax]

Is the tide turning?

No :-(

I disagree -- software patents may not be needed

[typical]

Innovative work expressed in software (a virtual machine) should have the same protection as any innovative work expressed in mechanical form (a physical machine). It is the non-obvious innovative work part that the patent office seems to not understand when it comes to software as well as they do when it comes to physical machines.

Not necessarily. The costs are different.

Patents are designed to deal with the realities of physical goods.

It is expensive to produce many plows. It takes a while to produce a factory to make plows. Plows, like most physical products, are pretty simple. So, basically, if I decide that I want to make a better plow in a world without patents, the existing dominant plow manufacturer can easily grab my idea (it's easy to reverse-engineer) and start competing with me long before I've ramped up my production. Also, it takes a lot of capital to compete with them -- someone has to be willing to throw money into establishing a factory. There are only a few improvements that can be easily made to a plow.

This is *not* the case with software production. The lifetime of a copy of software is usually only a few years. Even long-lived software packages, which may survive for twenty or more years, are seriously evolving over that time. Their success does not depend on a single idea, but on continued development. The complexity of software is very high, and thus almost everything can be seen as "patentable" -- software developers are must *constantly* come up with new ideas in the course of writing software.

In software, the person who comes up with an idea can probably write a prototype himself, and it's not unreasonable for many ideas for him to even produce a final product. The cost of distribution is extremely low -- there are plenty of one-man software outfits. This means that you need only sell the package for a short period of time to recoup your R&D investment. Furthermore, the time to reverse-engineer software is lengthy. With a plow, it may take no more than a ten-second glance to see how a new mechanism works. With software, it may take a long time of digging through diassembly to figure out the details of how, say, the Quake IV graphics engine works. Thus, the need to create an artificial monopoly doesn't necessarily exist -- in software, the problem that patents solve is at least partially already solved.

In addition, the very low cost of software distribution enables the concept of free product. Someone can create something without direct monentary compensation. This product will meet the needs of many people -- yet they do not require money to do this. This concept cannot exist in the world of plows, because distribution of plows, the per-unit cost of making each new plow, is significant. A good deal of excellent software was created by open-source volunteers. Patents, which a structure that embraces the established organizations that can supply money to lawyers to file applications and lawsuits, hurt open source a great deal -- far more than they affect closed source.

I'm not trying to make a positive argument that there is no need for software patents here -- I'm just saying that I can easily see how someone could make such an argument. I also don't think that the assumption that patents are equally needed in software is valid.

Finally, it is *really* hard to review patents well. Currently, there is *significant* benefit to making a patent obscure and hard-to-understand. Short of drastic changes, like passing something allowing the USPTO to throw out patents because they are "unclear", there is no incentive for filers to make life reasonable for patent examiners.

Some of the most new and innovative ideas I've seen in software (for example, in the peer-to-peer world) exist without any kind of patent encouragement whatsoever. Software patents would only harm development in this area.

Finally, I just really haven't seen any convincing examples where I feel that patents were really necessa

Re:Cheese-Eating Overturn Monkeys!

[Anonymous Coward]

Since when has the US gov ever cared what Europeans think?

I wonder why it has been rated -1 troll, ah right... Americans also don't care what Europeans think ;)

Patents:Usage::Copyright:Distribution

[SgtChaireBourne]

1. Software development in the US will be more expensive, ...

How does that one keep popping up again and again? Software patents have little or nothing to do with software development and everything to do with software usage.

Patents : Usage :: Copyright : Distribution

It's people using software that will feel the cost of software patents not so much developers. In principle it could also be used to crush smaller or independent developers, but the real money is in getting the end-users to pay to use their XML-serialization, shopping carts, blogs, etc.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Geeks just use microwaves, I guess

[Harmonious Botch]

" No, because a baking thermometer does not track progress. During baking the temp usually remains constant." A baking thermometer is used differently than most thermometers. It does track progress. You stick it in a piece of cold meat, put the meat in the oven, and when the center of the meat reaches a certain temp - as indicated by the thermometer - it is done.

Re:Cheese-Eating Overturn Monkeys!

[Tablizer]

I wonder why it has been rated -1 troll, ah right... Americans also don't care what Europeans think ;)

The reverse is probably true also.

The moderators are probably from Europe, that's it :-)