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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?"
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.
They called me mad, and I called them mad, and damn them, they outvoted me. -Nathaniel Lee
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.
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.
The universe is a figment of its own imagination.
- Software development in the US will be more expensive, and/or
- 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.I am TheRaven on Soylent News
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.
The universe is a figment of its own imagination.