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!

[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!

[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!

[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!

[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!

[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!

[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!

[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!

[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!

[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!

[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.

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

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?

[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?

[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.

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

[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

[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

[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

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

[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

[Intron]

i could probably patent my ass if i tried to

Rejected - too broad

Re: santa

[smoker2]

> i could probably patent my ass if i tried to

But would anyone pay you royalties for it?

Sorry, Prior art

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|
             ||  | |
             ||  | |
             ||    |
              |___/

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."

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

[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: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.

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.

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.

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.

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? 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.

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

[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

[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: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.

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: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.

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.

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.

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: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.

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Comment removed based on user account deletion

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.

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