Software Patents Compared to Hard Patents

Arie writes "The Slate discusses the obvious differences between patenting an algorithm and a drug. The article introduces the Fence test, which basically says that if you can physically protect your property, you have a case patenting it. In addition, it claims that the burden on a programmer identifying whether he is infringing on a patent or not involves excessive research burden, essentially to the inherent lack of physical boundaries. Obviously the article starts off with mentioning the patent dispute between RIM and NTL."

Comments

NTL???

[ecuador_gr]

Maybe NTP? Come on, you must have read the acronym in over 10000 headlines by now...

Re:NTL???

[tambo]

NTL??? Maybe NTP?

That's hardly the only problem with this Slashdot posting. It swallows wholesale one of the core problems with the original article: that NTP v. Blackberry is somehow a "software patent" case. On the contrary, the patents at issue in this case involve both software and hardware claims. Consider, e.g., U.S. Pat. No. 5,734,961, which contains 12 method claims and 17 apparatus claims.

If the patent had been exclusively hardware-based, the dispute would not change one whit. In fact, the only noticeable difference would be that Slashdot submitters would stop using it as a sloppy segue into the software patent issue.

- David Stein

Re:NTL???

[Anonymous Coward]

"the only noticeable difference would be that Slashdot submitters would stop using it as a sloppy segue into the software patent issue."

Hah! Only the four that RTFA!

Investment, risk, compensation

[Toby The Economist]

The original and valid purpose of a patent is to enable people who make investments in research to be compensated for the risk they take.

This - investment, risk, compensation - is the issue.

Whether or not a fence goes around the concept patented is utterly irrelevent.

If a fence test was implemented, all investment into non-physical research would be discouraged.

Re:Investment, risk, compensation

[saxmanb]

The original intent for granting patents was to encourage people to invent things. This has nothing to do with protection of investments. All investments contain risk. If you invest in something that isn't patentable or is patentable but not profitable, then that's just tough. Welcome to captialism and the free market.

Re:Investment, risk, compensation

[Anonymous Coward]

"The original and valid purpose of a patent is to enable people who make investments in research to be compensated for the risk they take."

Wrong. Government should not, and does not, play a role in determining compensation for the risks taken by individuals or corporations.

Government does, however, play a legitimate role in establishing policies that serve the public good. In the case of patents, the public good is served by encouraging the publication of innovations that might otherwise be kept secret. It is publiction that is rewarded, not the innovation itself. Innovations may be kept secret, rewarding only the inventor, and that's fine. Making innovations available to the public is the point of patents.

The key question for patent policy, also applicable to copyrights, is whether the policy encourages making innovations available to the public. It's not about the inventor or author, it's about the public. Is the public served by granting the inventor or author a monopoly? If yes, then it's good policy. If the public is harmed, for example by software patents, then it's bad policy.

Re:Investment, risk, compensation

[kfg]

The original and valid purpose of a patent is to enable people who make investments in research to be compensated for the risk they take.

Well, no, not exactly. People already made investments in research and were commercially compensated for it before patents.

The original and valid purpose of a patent is to force them to reveal their research to the public in order to gain government protection of it.

Whether or not a fence goes around the concept patented is utterly irrelevent.

Actually, this is exactly the test applied by the founder of the American patent system and its first examiner; Thomas Jefferson. For things which you can't put a fence around there is copyright.

Patents are not ideas, they are for things.

KFG

Re:Investment, risk, compensation

[nbert]

I might be mistaken, but IMO the original purpose of our patent system is to make innovation public. Since nobody in his right mind would do this for free there's a reward in the form of a monopoly for a limited period of time.

But if you (as a fictive company) prefer to keep your success private you can stick to trade secrets...

It's not about those who are paying, but those who have the idea (at least that's how it was intended).

Re:Investment, risk, compensation

[Antisoftpat Fairy]

One problem which exists in most password encryption schemes is that you either need to transmit passwords in the clear (or using a reversible encryption scheme), or you need to store them in the clear (or using a reversible encryption scheme).

While transmitting the passwords in a reversible encryption scheme protects against third party eavesdroppers, it does not protect against rogue servers.

Traditional Unix passwords are stored using an irreversible encryption scheme, but must be transmitted from client to server in the clear (or using a reversible scheme).

Samba and CHAP passwords are transmitted using an irreversible encryption scheme, but must be stored in the clear, which makes them vulnerable to compromise of the password data base.

Now, I've found a method which allows to have it both ways:

• passwords may be stored with an irreversible scheme.
• transmission is done using a challenge-response system which does not reveal password or password-equivalent hashes

The method is a variant of Diffie Hellman key exchange, relying on the difficulty of calculation a discrete logarithm. Let p be the pasword, g a generator and Q a large safe prime. g and Q are constants in the algorithms.

• Passwords are stored as g^p mod Q
• When authenticating a client, the server picks a secret k, only known to itself. It transmits C=g^k to the client as a challenge.
• The client calculates R=C^p, which is equal to g^pk
• Upon receipt, the server strips k by raising the client's response to the 1/k th power: g^p = R^(1/k)
• Finally it compares g^p against the stored hash g^p

Benefits: The server cannot the client to another server authenticating against the same password base, because at no time it knows p. Even if the server machine is compromised, passwords are still safe, even if unwitting clients logged in during the compromise.

This post was brought to you by the antisoftpat fairy. If, several years from now, you use this as prior art to bust an obnoxious software patent, please chant three times "de Juncker as ee Kallef, a gehéiert oofesaat!" as a thank you gesture for the fairy ;-)

Note to moderators: hmm, isn't this story about patents?

Re:Investment, risk, compensation

[skoaldipper]

I agree in part with most of what you say, and patents serve an important role in the initial venture of any capital product. Our nation's history is full of such examples, like the Cotton Gin.

However, when it comes to software patents; it's a mess and unmanageable at a concept level. There are far far too many finite bits of software concepts (algorithms across the board) which are unique, but completely worthless without some mechanical application of it.

Much like the article cites with the patented "Time distortion traveling machine", unless it's useful, it's useless. I say, patent the iPod, not mp3. Patent Amazon's online transaction service, not the one click concept. et cetera...

For software patents, the focus should be a migration from the concept level to the application realm. You still preserve your rights with prior Art and IP and can make any arrangements with any company to use your research. In the end, it will limit the tidal wave of patent happy highway robbers. Fair compromise?

Re:Investment, risk, compensation

[ChrisGilliard]

If a fence test was implemented, all investment into non-physical research would be discouraged.

Yes, I agree this fence test is not well thought out. Take for instance a patent on a computer chip. This would pass the "fence test" because you can put a fence around a computer chip. But the underlying idea that you patent might very well be a VHDL algorithm. Why would this algorithm be patentable but not a Java program? If you want to take it a step further, think about a specification for an advanced bridge. This clearly passes the fence test, but the underlying idea could be more of a specification that is similar to software than it is to something you can touch in the physical world. What it comes down to is either you believe that inventions/ideas are patentable. If you do, then you agree with the concept of patents. If you don't, then just ban them all. Of course, this would not be a very logical system since no one would be allowed to profit from his/her ingenuity.

Re:Investment, risk, compensation

[jmac880n]

If a fence test was implemented, all investment into non-physical research would be discouraged.

Wrong!

I seem to recall a lot of non-physical research in computers before software patents were allowed.

Just look up any conference proceedings that dates back a while, and enjoy! Look ma, no patents!!!

Re:Investment, risk, compensation

[rking]

If you do, then you agree with the concept of patents. If you don't, then just ban them all. Of course, this would not be a very logical system since no one would be allowed to profit from his/her ingenuity.

Of course people would be "allowed to profit" from ingenuity. RIM have employed every bit as much ingenuity in creating an actual product as any patent holder over the concept of a wireless email device has done. They're not even accused of having taken the idea from the patent archives. They have profited from their ingenuity. The question is whether the patent system will now take those profits away from them.

Re:Investment, risk, compensation

[AeroIllini]

Patents are not [for] ideas, they are for things.

Well said, sir.

I think the fence analogy is rather confusing, however. (No offense to Jefferson, of course.) I prefer to draw the line between ideas and implimentations. Without this distinction, there would be no such thing as a competing product.

For example, let's say you think of a novel new way to wake people up in the morning; something that's never been marketed before, like pouring water on your head. So you take this idea and distill it down into an implimentation called the AlarmWaker3000, which you patent. Now your good friend down the street has this same idea, and creates himself the WakeUp Machine, which he patents. But because the AlarmWaker3000 used a bucket and a piece of string tied to the hands of a clock, and the WakeUp Machine uses a hose crimped by a weight that gets lighter over time, neither one of you are infringing on each other's patents. You didn't patent "A method for waking someone up by splashing their face with cold water," you patented the "AlarmWaker3000" and the "WakeUp Machine".

The question of infringement on a patent usually boils down to the similarity between the two devices. Two companies can build, and patent, two different motherboard designs with exactly the same functionality: onboard video, sound, ethernet, whatever. But as long as the circuits are dissimilar enough (which is up to a judge to decide) then the implimentations are different and they don't infringe.

The problem with software patents is that the the line between ideas and implimentations has been blurred. Amazon patents their code for purchasing things with a single mouse click, once all your information is on file and you are logged in. Suddenly, anyone creating a shopping system that allows registered customers who are logged in to purchase things with a single mouse click is infringing on the patent, even if their implimentation is different. These companies are trying to use the patent system to enforce artifical monopolies on ideas instead of implimentations, and effectively cut out the competition. The truly troubling part is that the Patent Office, and lots of patent courts settling disputes around the country, seem to be going along with it.

Maybe the fault lies with an overworked Patent Office staff; maybe it lies with a culture that irrationally rewards new technologies. I just don't know.

Re:Investment, risk, compensation

[tambo]

Patents are not ideas, they are for things.

That's completely wrong. The subject of any patent, and the core protected aspect, is an inventive and novel concept. A physical object may incorporate that concept, but even then it is not the invention - it is the "embodiment" of the invention. It is a manifestiation of the inventive concept that the patent actually addresses.

This is evident in the fact that every patent has a difficult-to-ascertain quality called "breadth" - i.e., how broadly does the inventive concept stretch? A patent might claim the concept so narrowly that it only covers a single implementation - this is what we call a "picture claim," where you've essentially taken a snapshot of one embodiment, and gained protection of only exactly that object (and exact replicas.) At the other end of the spectrum, a "frontier patent" may claim a novel concept with an incredible range of embodiments - any implementation that incorporates that concept is covered.

Note: Even aside from software patents, "embodiment" is not limited to physical objects. The patent system has long protected "processes," i.e., sets of actions with novel results. The novelty here is completely in the abstract, functional steps of the process - it does not have to involve any particular object or composition. Of course, this fact is exactly why the argument against software patents is untenable: what is protected is not the actual software - not the code, compiled binary (or script), or the process in execution - but the abstract method that the software embodies... and such inventions have been patentable for over a hundred years.

- David Stein

Re:Investment, risk, compensation

[istartedi]

AFAIK, the original purpose of patents, In the US, was To promote the Progress of Science and useful Arts

Re:Investment, risk, compensation

[alienw]

Patents are not ideas, they are for things.

Wrong. Completely and utterly wrong. Laws about ownership are for things. Patents always protect ideas. For instance, an electronic circuit is not a thing, it's an idea, just like an algorithm. Circuits have always been patentable. I really fail to see why algorithms should not be patentable, so long as they are novel and nonobvious. Can you explain why it should be possible to patent an idea for a better monkey wrench, but not an idea for a better algorithm?

Re:Investment, risk, compensation

[kfg]

The problem with software patents is that the the line between ideas and implimentations has been blurred.

Actually, I don't like the fence analogy either and it wasn't 'exactly' the model Jefferson used.

The true test is whether the research can be transmitted by speech/print.

k=1/2mv^2, E=mc^2, "Now is the winter of our discontent. . .," as opposed to, say, a cotton gin.

If you can recite the research than it falls under those laws intended to protect speech, not things. As you say, ideas as opposed to implimentations.

It is, unfortunately, computers that have blurred the line between the two with the decision that since the physical device impliments the idea that it is somehow itself the device.

This is the sort of bullcrap we get when people cannot differentiate between the physical and logical levels. At its extreme I have seen plans for a piece of furniture that has no patent protection on it try to apply EULA copyright restrictions to your ablility to impliment the plans and claim a license fee for every instance of the furniture you build.

Oh, yeah, and a website whose legal page actually begins with "By viewing you agree to these policies . . ." which include a claimed restriction on reverse engineering their nonpatentable products.

It's gone totally crazy out there.

KFG

Re:Investment, risk, compensation

[tambo]

The question of infringement on a patent usually boils down to the similarity between the two devices.

That's completely wrong. The question of infringement boils down to a comparison of the claims - of the bare, essential, conceptual elements of the patented invention - and the embodiment accused of infringing.

The Court of Appeals for the Federal Circuit has had to correct this misconception dozens of times. Many accused infringers want to point to some feature of the patentee's product in order to make some argument about the proper interpretation (construction) of the claim language. This evidence is irrelevant. The patentee's products are irrelevant. All that matters is the text of the patent.

Now, why is this? It's because the patent covers an inventive concept - the feature that makes the invention novel and useful. Now, it doesn't broadly cover any "idea"; in the words of the USPTO, the idea must be "useful, tangible*, and concrete," rather than an "abstract idea" or a "scientific principle" without a specific use. But it nevertheless covers the class of "ideas" that constitute inventions.

(* Neither "tangible" nor "concrete" here means "physical." "Tangible" means that the invention has some interaction with the real world - e.g., the reallocation of money. But this money need not be physical; it can be virtual, i.e., data - what matters is that the shuffling of this data conveys a result with real-world consequences, i.e., money changes hands. And "concrete" must means "repeatable.")

- David Stein

Re:Investment, risk, compensation

[tambo]

I seem to recall a lot of non-physical research in computers before software patents were allowed.

You seem to have misread the post to which you're responding. That post didn't argue that physical research would stop - only that it would be discouraged. Conversely, patents were never envisioned as an essential requirement of invention - only as an incentive. So the question is not whether or not software was developed prior to software patents - only whether or not its pace was quicker or slower.

- David Stein

Re:Investment, risk, compensation

[ChrisGilliard]

You must not have read my post. What I was saying is, if you ban patents altogether that would make it impossible for someone to profit from his/her ingenuity. The RIMM case is a different story, and I don't know all the facts about it. It's possible that there are injustices in that case. I really couldn't tell you. But we don't need a fence test to disallow patents for non physical objects. Look at it this way, if we did have a fence test would RIMM have ever formed? It's possible no one would be willing to invest in the R&D necessary to create such a system if they would not be allowed to profit from it without having other people rip off their idea. Is that what you want? Or should we just fix the injustices by having a better patent system with better peer reviewers, etc.?

Re:Investment, risk, compensation

[kfg]

That's completely wrong. The subject of any patent, and the core protected aspect, is an inventive and novel concept.

For which a working physical model can be submitted.

F=ma cannot be patented because it is a "pure" idea. If I tell it to you you walk away with the novel concept in its entirety and can likewise transmit to another.

A circuit board may have have a novel concept behind it, but it is the board that is patented. Something I can actually steal and physically copy. I am not allowed to steal or make a copy of it, but I can talk about it all I want. In fact, to obtain a patent in the first place I must publish everything anyone needs to know to talk about it and there are no overt restrictions on such speech unless I sign some sort of NDA.

The plans for the board, which are just much the novel concept as the board itself is, are covered by copyright, not patent, because they are a publication, not the actual device.

Only the device is traditionally covered by patent, and algorithms have only obtained patent protection by claiming that when implimented by a computer they are part of the device.

KFG

Re:Investment, risk, compensation

[rking]

What I was saying is, if you ban patents altogether that would make it impossible for someone to profit from his/her ingenuity. The RIMM case is a different story, and I don't know all the facts about it.

It is one case in which a company, Research in Motion, has profited from their ingenuity without relying on patents. That is by no means unusual, but it is one very visible case. The claim that it would be impossible to profit from ingenuity in the absence of patents is flat out untrue.

Whether patents give a net benefit is something that can reasonably debated. The answer probably varies by field, but you can plausibly think otherwise. The claim that nobody could profit from ingenuity in the absence of patents, however, is as ludicrous as claiming that nobody can profit with them. We can all look around the world and see that it isn't true.

Re:Investment, risk, compensation

[ChrisGilliard]

Ok, I see your point. Maybe it's a little extreme to say that it would be impossible to profit without patents. It would certainly be easier for copy cats who do nothing creative to profit in a system without patents. For instance in China, people sell DVDs for under $1. These salesmen are certainly a group of people who have profited from the lack of intellectual property rights in China. I guess it comes down to what kind of behavior you want to encourage. If you want to encourage inteligent ideas like Google's Page Rank System, Alexander Graham Bell's telegraph and Edison's patent portfolio you will also encourage a strong patent system.

Re:Investment, risk, compensation

[CastrTroy]

I know people who work for RIM. If you think that RIM got to where it was without using the patent system, then you are badly mistaken. RIM holds many patents, and offers bonuses to employees who come up with ideas that they eventually patent.

Re:Investment, risk, compensation

[Anonymous Coward]

The original and valid purpose of a patent is to force them to reveal their research to the public

Exactly. (How on earth did the grandparent get modded insightful when it is just plain false??)

Patents were only devised to induce disclosure, because invention never needed inducement. As such, it doesn't make sense to award a patent for an idea that cannot be kept undisclosed. And how many algorithms can you really use in secret? When did you even hear of a patent on in-house software?

Re:Investment, risk, compensation

[kfg]

How on earth did the grandparent get modded insightful when it is just plain false??

Democracy.

KFG

Re:Investment, risk, compensation

[Peter La Casse]

For instance, an electronic circuit is not a thing, it's an idea, just like an algorithm.

Care to explain?

Can you explain why it should be possible to patent an idea for a better monkey wrench, but not an idea for a better algorithm?

Patents don't exist in a state of nature; they were created because they bring a net benefit to society. For a variety of reasons, patents on algorithms impede progress and economic growth; they do not produce a net benefit to society, so they should not be granted.

Re:Investment, risk, compensation

[PostItNote]

> The patent system has long protected "processes,"

Nope. What you patent is "a device implementing this idea" and then you describe the device in depth in such a broad (and yet oddly specific) way that can be interpreted to mean "all devices implementing this algorithm including computers" in enough courts. This is a bad hack on the legal system thought up by AT&T in the 70's when they wanted to patent Huffmann codes. The mathematicians who figured it out didn't think it should be possible to patent math, but AT&T had an army of lawyers and found a way that got past the patent office's bullshit detector. Business process patents are an even more recent innovation - and even stupider.

Patenting ideas is bad news. Patenting things makes much more sense. Copyright is for ideas, and so are trademarks. You may patent *devices* and devices only.

Re:Investment, risk, compensation

[alienw]

Care to explain?

OK, I might not have been too clear. Let's say you design a new type of amplifier that has better performance than an existing one. It's certainly patentable, and it's just an idea. Just because you might implement it with transistors instead of bits doesn't mean it's substantially different.

For a variety of reasons, patents on algorithms impede progress and economic growth; they do not produce a net benefit to society, so they should not be granted.

You have not presented a shred of evidence to support your assertion. If patents on algorithms do not benefit society, how do patents on mechanical gadgets benefit society? There isn't some kind of magical dividing line. It takes just as much ingenuity to come up with a novel algorithm as it does to invent anything else.

Re:Investment, risk, compensation

[tambo]

Nope. What you patent is "a device implementing this idea"...

35 USC 101: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."

In case you missed it, "process" is the first one.

This has been the wording of the statute since 1952. And process patents long predate 1952: in this change, the patent law only affirmed the long-standing USPTO and court practice of allowing patents on processes.

In other words, your arguments that patents should only adhere to "things" are over 54 years too late.

- David Stein

Re:Investment, risk, compensation

[tambo]

For which a working physical model can be submitted.

What "working physical model" do you expect someone to submit for a process of treating cancer by using a particular drug? Or for a complex chemical engineering technique, or a process (and composition!) of uranium enrichment, or a nuclear weapon, or a process of identifying particularly useful genes... All patentable - yet all incompatible (hopefully) with the idea of a "working physical model."

- David Stein

Re:Investment, risk, compensation

[tambo]

The true test is whether the research can be transmitted by speech/print.

What an odd concept. Virtually all chemical research is described by "speech/print." You don't document a chemical engineering technique with pictograms or multimedia; you show it by describing, in words and letters, the steps.

In fact, your distinction would relegate every single patented invention exclusively to the land of copyright. You see, since 1952, patentees have been required to describe their invention in claim language - a single sentence of plain words that summarizes the invention. Even the most complex machines that are best explained through a drawing must still be claimed in plain words. Claims like "I claim the invention shown in Figure 1" are per se invalid, and are rejected out of hand by the patent office. You have to say, "I claim: A machine comprising: a sprocket, a flange connected to the sprocket, a winch connected to the flange,..." By your logic, every one of these claims is a summary of the invention in "print," and so every one of these inventions is only protectible by copyright. Do you see now why your test is nonsensical?

At its extreme I have seen plans for a piece of furniture that has no patent protection on it try to apply EULA copyright restrictions to your ablility to impliment the plans and claim a license fee for every instance of the furniture you build.

Oh, dear. I guess it's time for the biweekly Slashdot Intellectual Property 101 lecture once again...

Many objects, including your hypothetical piece of furniture, have both patentable and copyrightable aspects. Copyright protects original expression; patents protect functional novelty. A chair may have both a distinctive artistic quality that constitutes "artistic expression," and also a patentable support structure. In fact, the same physical element can easily serve both purposes, and so be covered by both kinds of intellectual property law.

In the case of your chair, the "implementation" of the plans is called derivatization. You are taking the artistic work described in the blueprint, and you are creating a derivative - i.e., a physical chair embodying the same artistic expression. It's exactly the same as making a movie version of someone else's novel - what you're doing is "adaptation," which is the novelist's exclusive copyright over his novel.

- David Stein

Re:Investment, risk, compensation

[kfg]

What "working physical model" do you expect someone to submit for a process of treating cancer by using a particular drug?

None.

Or for a complex chemical engineering technique. . .

None.

or a process (and composition!) of uranium enrichment. . .

None.

or a nuclear weapon

That one's pretty easy. I think, perhaps, you are confusing model with identity.

or a process of identifying particularly useful genes

None.

all incompatible (hopefully) with the idea of a "working physical model."

Exactly, because they are all (excluding the nuclear weapon) logical contructs, not physical constructs. Traditionally trade secret territory, not patent territory.

KFG

Re:Investment, risk, compensation

[Schraegstrichpunkt]

People already made investments in research and were commercially compensated for it before patents.

The original and valid purpose of a patent is to force them to reveal their research to the public in order to gain government protection of it.

You know, I've been complaining about software patents for years, but I don't think I ever totally understood the argument until now. Somebody (I think it was either RMS or Bruce Schneier) said that even patents like RSA shouldn't have been granted, but I never quite understood it. Now, it's obvious to me. Rivest, Shamir, and Adleman would have developed and published their algorithm anyway, so in that case, the patent system did nothing but screw over the public for 20 years. (Of course, U.S. export restrictions on cryptography screwed them over, but that's beside the point.)

Thank you. (Wow, I actually learned something useful on Slashdot...)

Re:Investment, risk, compensation

[Lonath]

Question: If someone invents a machine that produces a new sound by carrying out some process with its internal components and I come along and record the machine and then sell copies of the recording on the Ebay, would you say that I am infringing the patent?

Re:Investment, risk, compensation

[tambo]

That one's pretty easy. I think, perhaps, you are confusing model with identity.

But by your words, it must be a "working model" of the nuclear weapon. A non-working model wouldn't suffice. Your words, not mine.

Exactly, because they are all (excluding the nuclear weapon) logical contructs, not physical constructs. Traditionally trade secret territory, not patent territory.

Cancer drugs are not, and never have been, trade secret territory. The FDA would never approve a cancer drug (or the process of using it to treat cancer) unless it knew the exact contents.

Likewise, complex chemical engineering techniques are very often the subject of academic publications. You must not have heard of the Chemical Abstracts Service, which lists 24 million abstracts for chemistry-related inventions. How badly would the field of chemistry be damaged if chemical engineers had to lock away their inventions as trade secrets, instead of just publishing and patenting them?

- David Stein

Re:Investment, risk, compensation

[tambo]

Question: If someone invents a machine that produces a new sound by carrying out some process with its internal components and I come along and record the machine and then sell copies of the recording on the Ebay, would you say that I am infringing the patent?

You're mixing up patent law and copyright law.

"Sound" generally isn't patentable. It's not a machine, a manufacture, a composition of matter, or a process. I can think of hypotheticals where it might be - e.g., a "signal" claim, where the sound is a modem bitstream containing computer instructions that embody a patented process. But that's really a stretch. Except in strange cases like this, "sound" is not patentable, so if you detect and record it, you have not violated a patent for the machine. (Now if you built the machine without the owner's consent - or if the patent also claimed the process of producing a useful sound by using the machine, and you used it while recording the sound - then you have violated the patent on the machine.)

"Sound" is clearly copyrightable - if (1) it contains an artistic expression, and (2) it is fixed in a tangible medium at some point. (Let's presume that #1 is true, and that your machine includes a memory chip that contains the "sound" data, and that your machine is reading from the memory, which would satisfy #2.) If #1 and #2 are both true, then your recording of it constitutes either a "copying" or a "derivation," so you would need the owner's permission. If either or both of #1 and #2 aren't true, then the sound isn't copyrighted and you can do what you like.

- David Stein

Re:Investment, risk, compensation

[torokun]

Let me just note for the record here, that you are completely wrong. To be more specific, this may be how you WISH the patent system works, but it most definitely is NOT how it has worked for over 200 years.

Copyright is all about protecting particular expressions of ideas. Patent law is all about actually protecting ideas.

You can't obtain a copyright in, for instance, the idea of a certain plot, or a certain genre of song, or any other such 'idea.' Copyrighted works must be fixed, and must be a particular expression of such ideas, for instance a particular story which uses a plot, or a particular song which may belong to a genre or pattern...

Patents are most emphatically not about protecting such particular expressions, or particular devices, as you state. Patents are about protecting the IDEA of the invention, and they always have been. Your example of the method of waking someone up with cold water could be a patentable invention, if it had never been done before, and was not obvious based on what had come before...

The particular devices are just what people don't want to patent; nor would it be useful to do so, since inventions are not like books - inventions can be used in millions of different forms, and still serve their purpose perfectly. The devices that embody inventions could be so varied that protection for only a particular one would be basically useless.

This is why the claims of a patent are not supposed to be limited by the embodiments described in the written description portion of the patent, except in special cases. The claims determine the invention, not the particular embodiments that the inventor describes in the specification.

For example, if I claim a chair, by claiming something like a sitting surface with at least 3 legs, etc., I am the inventor of THE CHAIR. It's an idea, not a particular type or style of chair. It's a completely new sort of thing. I will describe a couple of different ways to make chairs in the specification of the patent, to show how it could be accomplished, but these are not what is covered by the patent. What is covered by the patent is anything encompassed by the language of the claim.

Re:Investment, risk, compensation

[kfg]

The modern patent system was devised to deal with a very particular problem. Take the varnish used by Stradivari on his violins. Because there was no legal protection for the formula in order the maintain a competitive commercial advantage he had to keep it secret.

And when he died, so did the formula.

Inventions were being made at a tremendous rate because there was good money to be had by having a monopoly on an invention, even without government protection. But these inventions were all being lost to humanity, because they were being closely held.

So a very straightforward deal was devised:

"Look, Strad old bean, you've got the world by the balls right now, but one industrial spy and it's all over for you; and you never know when that spy is going to get you. If you'll agree to publish your formula we'll agree to lend the weight of the government to beat up anybody who uses it without your permission, but only for 20 years.

Thing is you will then also know exactly when the monopoly will run out and can plan your exit strategy. A defined period of security in exchange for giving up the idea."

"Now then, we're going to make this even easier on you. The default is going to remain the natural status. Your invention has no protection other than what you can give it if that's what you want. The system is opt in, it's not being forced on you by law. It's a contract between you and the people of the nation. They give up the short term right to discover and use your formula in exchange for your giving it to them in a reasonable amount of time."

You can see that its entire point is enrichment of the public domain with inventions usable by all; and also that those things which are inherently published or embodied in a publicly obvious process (like putting toys out in your business so the kiddies don't bother you while you're doing business) simply don't fit the contract with the public. The public gets no quid pro quo for granting the monopoly.

And there is a complete other branch of law to deal with the monopoly protection of publications, because this branch of law inherently intrudes on the rights of free speech.

And there's the true division. Patents are about physical things, because a monopoly on physical things does not intrude on speech and in many ways can even be seen to extend it. Copyright limits speech.

Patents are about tangibles, copyrights are about abstracts; and never the twain shall intersect, lest we end up with the way things are now with patents being granted on using a laser pointer to exercise your cat.

And of course the bulk of all ideas, both those tangibly embodiable and those that are purely abstract are inherently reserved to the people. Government enforced monopolies are supposed to be granted only in those exceptional cases where the the people inherently benefit from it.

Because the monopoly is a contract with the people. Quid pro quo.

KFG

Re:Investment, risk, compensation

[Lonath]

More concrete example, there are patents on music boxes. If someone patents a music box and I place a microphone next to it and record the output and sell CD's on Ebay, have I violated the patent on the music box?

Re:Investment, risk, compensation

[kfg]

But by your words, it must be a "working model" of the nuclear weapon. A non-working model wouldn't suffice. Your words, not mine.

A small nuclear weapon would not be a working model of a nuclear weapon. It would be a nuclear weapon. A model is not the device, it is an analog of the device.

Cancer drugs are not, and never have been, trade secret territory.

You did not specify a cancer drug. You specified a process for using it. I specified that the drug itself would be submitable. It is physical, not logical.

Cancer drugs are not, and never have been, trade secret territory.

You must not have heard of the Chemical Abstracts Service, which lists 24 million abstracts for chemistry-related inventions

I'm a physicist, but I've been known to have the odd chat with members of the chemistry dept. and know a number of industrial chemists. Lexan sent my cousins to college.

Lexan is a thing. Techniques are not, although the tools to impliment those techniques are things and are legitimately patentable if they are unique invention in and of themselves.

How badly would the field of chemistry be damaged if chemical engineers had to lock away their inventions as trade secrets, instead of just publishing and patenting them?

How much more advanced would it be if it were open to free academic inquiry and publication? The question can be posed either way.

The best research is not done out of love of money, it is done out of love of curiosity. Money is, of course, needed to capitalize the research, but we once had a reasonably tolerable method for dealing with that.

Industry funded academic research by making tax deductable donations to nonprofit research facilities, and got the results "for free." This, of course, only advanced science, which left them free to turn their engineers loose of making tangable, and thus patentable, products from that science.

Science and engineering are not the same thing. One is abstract. The other isn't. One is about ideas. The other is about "stuff."

Ideas can be published once and everyone has it. "Stuff" needs to made, distributed and can be sold for a profit. Patents were invented to create a temporary monopoly on making "stuff."

Ideas were not left out in the cold. They have their own means of seeking monopoly protection. We call it "copyright." The formula for the stuff is a very different thing than the stuff itself. One is abstract. The other is not.

Between the two you have the bases covered. Copyrights for protection of desemination of knowledge, patents for the protection of making things.

Anything which does not fall under the legal protection of one of these two, for whatever reason, does not deserve a grant of monopoly powers. Rights are reserved to the people.

KFG

Re:Investment, risk, compensation

[ArsenneLupin]

Maybe he's thinking about the proposed European constitution where intellectual property is a goal in itself. The EU constitution just says: "Intellectual property shall be protected" (Art II-77-2). No ifs, no buts.

Obviously, the drafters of the EU constitution wanted to avoid the "errors" of their US peers, which "inadvertedly" gave too much liberties to the populace, and not enough to honest businessmen...

Re:Investment, risk, compensation

[tambo]

If someone patents a music box and I place a microphone next to it and record the output and sell CD's on Ebay, have I violated the patent on the music box?

You're leaving out some key details about the music box. Did you make it, or buy it from someone who didn't have the right to make it? Is it being operated by you, or by someone who's not authorized to operate it, or by the patentee or one of his licensees? Are you complicit with an unauthorized manufacturer/operator in the operation of the music box? These are the key questions.

All of these questions relate to the machine and the method of making or using it. For the purpose of this hypothetical, I'm going to look past all of that, and presume that the patentee is the one operating it - that you're only recording it.

In this case, you are not violating the patentee's patent. You are not making or using the invention (a machine and perhaps the process of using it to create music.) It's very, very difficult to imagine how your audio tape would fit the music box invention as claimed in the patent.

As a completely separate question, you may well have violated the patentee's copyrights over the music issuing from the music box. But you don't seem interested in that wing of IP (and it's not a thought-provoking issue), so I won't elaborate.

- David Stein

Re:Investment, risk, compensation

[tambo]

A model is not the device, it is an analog of the device.

Hey, you're the one who demanded that the models must be "working." I'm just holding you to your own proffered requirements.

You did not specify a cancer drug. You specified a process for using it. I specified that the drug itself would be submitable. It is physical, not logical. Cancer drugs are not, and never have been, trade secret territory.

So now you're suggesting that the cancer drug would and should be well-known, but that the "method of using it" is better protected by trade secret than by patent?

Seriously, think about what you write before clicking "submit." The "method of using" a cancer drug involves (1) manufacturing it in a safe dose, and (2) having the patient swallow it. How, exactly, do you foresee trade secret being useful in this context? Curiouser and curiouser...

Patents were invented to create a temporary monopoly on making "stuff."

Wrong. Take a look at the first clause of our patent law, circa 1952:

35 USC 101. Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

Why did the drafters of our current patent law very pointedly include the term "process" as a distinct class of patentable inventions? They already had machines, manufactures, and compositions of matter. That pretty well covers the bases for "stuff," and by your logic, this should have been sufficient. So why did the legislators very specifically and separately include "processes"?

For 54 years and counting, our patent legislators have very explicitly authorized the patenting of "processes." This is not limited to "processes of making stuff," or "processes of using stuff." This means all novel processes. You can go ahead and argue that this isn't optimal, that it needs to change - but you cannot argue the plain meaning of what the law permits today.

Copyrights for protection of desemination of knowledge, patents for the protection of making things.

You couldn't be more absolutely wrong. I've already covered why you're wrong about patents. Now I'll address why you're hopelessly wrong about copyrights.

Copyright law does not protect "knowledge." Never has; never will. That proposition is completely unsupported by the entire body and history of copyright law. As a rule, the knowledge that may be embedded in a copyrighted work can be extracted and freely used (unless it's protected as another kind of IP... e.g., a patent.)

Rather, Copyright covers original artistic expression. It covers the aesthetic qualities in music, prose, poetry, sculpture, architecture, industrial design, etc. You cannot copyright facts or ideas - you can only copyright your particular expression of them as a work of art.

Seriously, your utter ignorance of IP law is shining through your posts in this discussion. Please do some research before responding.

- David Stein

Re:Investment, risk, compensation

[kfg]

(2) having the patient swallow it. How, exactly, do you foresee trade secret being useful in this context?

How exactly do you plan to patent that?

>>Patents were invented to create a temporary monopoly on making "stuff."

>Wrong. Take a look at the first clause of our patent law, circa 1952:

"35 USC 101. Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."

Patents were not invented in 1952.

KFG

Re:Investment, risk, compensation

[Lonath]

I was assuming that you bought tbe music box from the inventor and was allowed to play it. That wasn't the issue. The issue is the whole hardware=software thing.

I realize that there is a big difference between patent law and copyright law, and my example was intentionally stupid and making an obvious mistake according to my understanding of patents and copyright. I admit that. The reason I made the ridiculous example is that one of the major reasons people use to justify software patents is that hardware patents are ok (which I agree with) and that software and hardware are interchangeable so therefore software patents are ok and should be treated the same as hardware under patent law.

What I was talking about here is making a software implementation of a piece of patented hardware, which by the rules of those who like software patents (assuming they're being consistent in what I would consider a reasonable manner), the recording should be treated the same as a piece of software that was written that did something similar to what a patented piece of hardware did.

Now maybe there's a technical lawyerly reason why the analogy doesn't work...and it wouldn't surprise me, but code=data and hardware and software implementations of process don't do things in the same way, so that's one of the main reasons why so many programmers think software patents are stupid. You would never get sued for patent infringment for selling a CD of music (assuming that the process of selling music isn't why they sue you :P). It just doesn't happen, but somehow amazingly when you sell a CD of software, you might just get sued under patent law. Even though in both cases the CD contains a string of bits that gets used by a general-purpose machine as a set of instructions to carry out a process that could have been carried out by a special-purpose machine that could have been patented. So I guess I figure that in order to be consistent, either don't allow patents on software, or allow patents on music, movies and books.

Re:Investment, risk, compensation

[kfg]

Many objects, including your hypothetical piece of furniture, have both patentable and copyrightable aspects.

You left out the fact that it might also have trademark protection.

KFG

Re:Investment, risk, compensation

[ajs318]

The original and valid purpose of a patent is to enable people who make investments in research to be compensated for the risk they take.

NO.

The original purpose of a patent is to encourage people to invent things which better society as a whole, by offering them a temporary monopoly over their invention in return for its eventual release to the Public Domain for the benefit of everyone. If an invention is any good, it will recoup its development costs and maybe make a little profit but that is a side-effect of the means, and not part of the end.

All means to the same end are equally valid. So maybe we need to look seriously at alternatives to the patent system: we still want to encourage people to invent things which better society as a whole, but is a temporary monopoly really the best way to achieve this?

Re:Investment, risk, compensation

[ajs318]

If you had a real working model of a nuclear weapon, I do not think you would have to worry too much about patent infringers!

Re:Investment, risk, compensation

[sp3tt]

Patents do not encourage inventions, nor do they make inventions better. What they do is shift invention from non-patentable areas to patentable areas. You cannot prove that this is good. Further, the free-rider argument is bullshit, as I have shown in a previous comment.

The patent system has to be abolished.

Re:Investment, risk, compensation

[sp3tt]

If you invent a cure for AIDS and keep it to yourself, well, can't force to reveal it. However, the profit you would make from selling that drug would be huge. Inventions will maybe (a large maybe) not be revealed publically, but that's where reverse engineering comes into the picture. Eventually, other will produce the product. And probably a lot sooner than the patent would expire. Patents kill competition and threaten innovation.

Re:Investment, risk, compensation

[Peter La Casse]

Care to explain?

OK, I might not have been too clear. Let's say you design a new type of amplifier that has better performance than an existing one. It's certainly patentable, and it's just an idea. Just because you might implement it with transistors instead of bits doesn't mean it's substantially different.

I'm still confused about how something that I can hold in my hand is an idea, not a physical object.

For a variety of reasons, patents on algorithms impede progress and economic growth; they do not produce a net benefit to society, so they should not be granted.

You have not presented a shred of evidence to support your assertion.

Correct. I left that for a followup post, in case there's someone to whom it is not self-evident. I will avoid discussing whether or not any of these things are true for patents on mechanical gadgets; in some cases they might be, but in some they aren't, and I'm not arguing for the abolition of all patents at this time (though I'm open to the idea). Do you agree, though, that if my assertion is correct, patents on algorithms should not be granted?

Algorithms, being nonphysical, are able to be copied much more quickly and at much lower cost than mechanical gadgets. This has led to a computer software industry that is racing forward at incredible speed. The rate of development of new and better software is high, which brings tremendous economic benefits. Software patents limit this forward progress to the patentholder, slowing everyone else and hurting the economy. Since nobody holds all patents, everybody is slowed.

Patents were created to reduce trade secrets, but the ultimate goal is to promote progress. No extra promotion of progress is needed in the world of software; companies and individuals are busy racing forward as quickly as they can. Software patent holders would not pack up their bags and go home if software patents were eliminated; instead they would innovate even faster than before, in order to capitalize on their development investment.

The USPTO appears unable to limit software patent grants to good software inventions. As a result, we are flooded with bad software patents covering common or obvious techniques. These are used to slow down industry progress even more. It's difficult to write a nontrivial program without infringing on some patent somewhere; what saves forward progress at all is the sheer difficulty of sifting through the billions of lines of code and finding suitable targets to sue, in conjunction with developers who ignore software patents entirely and simply write code, hoping not to be sued.

Because of the plethora of bad patents, there is much litigation that would not otherwise exist. This wastes lots of money and ties up the courts. These extra costs are a burden on the industry and on society.

If patents on algorithms do not benefit society, how do patents on mechanical gadgets benefit society?

It's very possible that they no longer do. Back in the day, maybe they did, but today, there are lots of bad patents on mechanical gadgets too. Today they're used by big companies to hold back the little guy and each other. I don't think that's beneficial to society, though it's much less clear in the case of mechanical gadgets than of algorithms. Being in the business of algorithms myself, I see their bad effects more than I see the bad effects of patents on mechanical gadgets.

There isn't some kind of magical dividing line.

There is, in fact: physical objects are much more difficult and expensive to copy than ideas.

Re:Investment, risk, compensation

[tambo]

Patents were not invented in 1952.

Well, if you're looking at the "big picture" of patents in history - patents were not invented specifically to spur "invention," either. The Venetian and English patent systems were designed to promote the rate of industrial development in a home country, but those new technologies could be claimed for a patent even if the patentee had only imported his observations of technologies in other countries. Realistically, however, they were used (1) to protect the guild system that comprised the economic structure of England, and (2) as a system of political rewards. Going back even further, the Greeks used to grant patent-like rights for recipes.

Clearly, the goals of the monopoly right known as a "patent" have substantially changed over the years. So your characterization of why patents were "invented" is not really substantiated, since the motivation has been dynamic. More particularly, nowhere is there evidence that the U.S. patent system - or any other - was limited to "stuff" and processes for making "stuff."

I invite you to find and cite any kind of academic reference that supports that assertion. You may want to look at the works of Edward Walterscheid or Bruce Bugbee, two prominent scholars of the history of patent law. Having read their works in detail a few years ago, I would warn you that this might be a fruitless effort - though you would come away with a much more accurate understanding of the patent system than you now appear to have.

- David Stein

Re:Investment, risk, compensation

[tambo]

The reason I made the ridiculous example is that one of the major reasons people use to justify software patents is that hardware patents are ok (which I agree with) and that software and hardware are interchangeable so therefore software patents are ok and should be treated the same as hardware under patent law.

I understand and appreciate the purpose of your analogy. We don't usually see such reasoned discussion here at Slashdot, so I appreciate it.

And now, let me destroy it. ;)

Your analogy is unworkable because it unsuccessfully tries to differentiate functional hardware from functional software. What it actually does is differentiate functional hardware from the nonfunctional product of that hardware. For many types of inventions that produce something, the invention is patentable but the product is not. (In fact, in your analogy, product isn't even "software" - it's just sound. Software isn't present in any form. So I don't see how your analogy applies to this discussion. In fact, the kind of sound that you suggest - music - is very clearly not patentable, even today.)

Now, getting to the core of your argument:

but code=data and hardware and software implementations of process don't do things in the same way...

But any logical process that can be implemented as a circuit can also be implemented as a software algorithm. This is a well-established theory of computer science, deriving in part from Turing. It's also evident in the incredible degree of success achieved by the emulation community - virtually every computer-related machine on the planet has been modeled wholly in software. (I recommend checking out a "Foundations of Computing" text that describes what kinds of problems can be solved by different classes of machines - it's really interesting stuff, although quite abstract and not very practically useful.)

Consider this: When you patent a circuit, what is the exact thing for which you are getting a patent? Most such patents claim the invention in two basic ways: first as a novel arrangement of components, and second as the stepwise, abstract process that the circuit performs. For the latter claim type, the patent does not cover the precise arrangement of semiconductor components. In fact, the component layout is often a very ordinary, straightforward implementation of the novel process that the inventor has disclosed. (And in many cases, the inventors might not even know anything about that circuit - it may have been auto-generated by a CAD program, in response to the inventor's specified requirements.) Rather, the latter claim describes the process that the circuit embodies. So even if a competitor makes a trivial change to create a different circuit that carries out the same process, it is covered. That's the strength of the patent grant.

In other words: Patents can validly protect a process, regardless of the implementation details. For infringement purposes, all that matteris is whether or not someone is using the process. It could be carried out by a replica of the patentee's suggested circuit, or by some other kind of circuit... or by software running on a general-purpose machine. And this is the exact reason why "software patents" are now allowed by the federal courts. In fact, such patents often don't even mention software - they focus exclusively on the details of the process. Because, in the end, the implementation is irrelevant.

- David Stein

Re:Investment, risk, compensation

[tambo]

The original intent for granting patents was to encourage people to invent things. This has nothing to do with protection of investments.

Tell that to all of the companies with R&D budgets in excess of $1 million per year.

Invention generally arises from one of two circumstances:

• Professional, for-profit research to find a targeted solution to a particular problem, and to create new products and services based on it; and
• Hobbyist or academic research that explores the details of a problem or phenomenon, and that yields new knowledge that might be useful in a product or service.

I call the former "innovation" and the latter "research." Patents are intended to promote innovation by offering the capacity for financial reward. Patents do not really pertain to research, and do not affect its operation.

- David Stein

Re:Investment, risk, compensation

[bill_mcgonigle]

Now, it doesn't broadly cover any "idea"

How can they then award business method patents?

Re:Investment, risk, compensation

[alienw]

I'm still confused about how something that I can hold in my hand is an idea, not a physical object.

You can hold a CD in your hand. Does that make software a physical object?

Algorithms, being nonphysical, are able to be copied much more quickly and at much lower cost than mechanical gadgets. This has led to a computer software industry that is racing forward at incredible speed.

I fail to see why algorithms are necessarily easier or faster to copy than mechanical gadgets. The process of designing a piece of software and designing anything else is largely the same. Even if that is indeed true, I fail to see why it necessarily accelerates progress. I would also disagree that the rate of progress in the world of software is greater than that in other industries. Many industries have a high rate of innovation.

Software patents limit this forward progress to the patentholder, slowing everyone else and hurting the economy.

Well, you can always pony up the cash and license the patent. The theory is that it accelerates progress, because innovation is rewarded. Why is this untrue for software and true for other industries?

No extra promotion of progress is needed in the world of software; companies and individuals are busy racing forward as quickly as they can.

This is true of many industries. Competition from overseas is another major driver. In general, there is plenty of motivation besides patents.

It's difficult to write a nontrivial program without infringing on some patent somewhere

Only because the patent quality is very low. It would not be true if the USPTO did its job properly. However, this is also true of most other industries. There is always the possibility of infringing someone's patent. The theory is, you would negotiate a deal with the patentholder.

Being in the business of algorithms myself, I see their bad effects more than I see the bad effects of patents on mechanical gadgets.

This seems to be by far the biggest issue. People oppose software patents because they are in the software business. However, software patents really aren't significantly different from other patents. They cause the same problems in the electronics industry, and probably in the mechanical industries as well. The real problem is the horrible job the USPTO does approving patents, not patents themselves.

Re:Investment, risk, compensation

[Peter La Casse]

I'm still confused about how something that I can hold in my hand is an idea, not a physical object.

You can hold a CD in your hand. Does that make software a physical object?

No, but it makes that CD a physical object. I can touch an electronic circuit with a stick. It's a physical object.

I fail to see why algorithms are necessarily easier or faster to copy than mechanical gadgets.

Algorithms can be stored in electronic form. Things stored electronically are necessarily easier and faster to copy than mechanical gadgets. They can be emailed, ftp'd, copied with the "copy" command, etc., using technology that is cheap and widely available (personal computers). The closest that a mechanical gadget copying process can come to that is mass production, which is much more limited and expensive.

Software patents limit this forward progress to the patentholder, slowing everyone else and hurting the economy.

Well, you can always pony up the cash and license the patent.

Not necessarily. One of the reasons for the pace of software development is the low barrier to entry: a $300 computer plus an internet connection is all you need to start writing software. Many developers can't afford to license a single patent, and there are many patents.

The theory is that it accelerates progress, because innovation is rewarded. Why is this untrue for software and true for other industries?

Maybe it's not. Can you demonstrate that it's true for other industries? Many rewards for innovation already exist, and it seems reasonable that there could be many fields where patents (even of mechanical gadgets) hold up progress rather than accelerating it.

No extra promotion of progress is needed in the world of software; companies and individuals are busy racing forward as quickly as they can.

This is true of many industries. Competition from overseas is another major driver. In general, there is plenty of motivation besides patents.

Sounds like a good reason to investigate whether any patents are worthwhile.

The real problem is the horrible job the USPTO does approving patents, not patents themselves.

The fact that the USPTO is not capable of competently administering the patent system is by itself sufficient reason to eliminate patents.

One of the biggest problems with the patent system is that it punishes parallel development. If two people "invent" the same thing independently, then it's too obvious to have been issued a patent in the first place. Non-willful patent infringement, therefore, should be grounds for invalidating a patent.

Thanks for the dupe

[LeonGeeste]

http://yro.slashdot.org/article.pl?sid=06/02/07/13 19209

Re:Thanks for the dupe

[Anonymous Coward]

That's why they call them "moditards".

I have software patents

[Neil Blender]

And they are protected by an electronic fence.

Re:I have software patents

[leoboiko]

And you too, protect your software today!

First dupe?

[Otter]

Stupid article anyway, but Taco had it this morning.

From Soft to Hard

[Anonymous Coward]

I'll bet Carmen Electra could turn a soft patent into a hard patent if she held it in her hands.

Re:From Soft to Hard

[Anonymous Coward]

Of course, if it's not impatent we are talking about.

So if the boundary for patent legitimacy...

[msauve]

is to be "things you can physically protect," how does that jive with the fact that completely independent discovery/invention can run afoul of existing utility patents?

It seems to me that the most basic problem with the patent system is that patents can be written in language which no one, even if "skilled in the art" (as is supposed to be the case, but obviously isn't) can clearly understand unambiguously. That causes at least two problems - patent examiners are left befuddled, leading to undeserved patents issued. Secondly, and even more importantly, since patents are supposed to force disclosure to benefit the public (after the patent term expires), having a bunch of claims buried in obfuscating language defeats the purpose.

Re:So if the boundary for patent legitimacy...

[Jerry Coffin]

So if the boundary for patent legitimacy is to be "things you can physically protect," how does that jive with the fact that completely independent discovery/invention can run afoul of existing utility patents?

How are the two related at all? I can touch things like car parts, but how does that have anything to do with who invented them?

The fact of the matter is that at the present time, patents that are applied to software really still apply to tangible products -- things like a CD-ROM (tape, hard drive, whatever manner of storage device) holding a program that does X, or a computer system executing a program to do X, etc.

The fact is that code really is tangible -- you may not be able to "touch" the individual bits themselves (or at least directly sense things like the magnetic domains their bits form on a hard drive) but you can certainly touch the storage device, and without that tangible storage, the code can't exist. Likewise, the code doesn't really do anything until or unless it runs on another tangible device (a computer).

The bottom line is that while it's difficult to do, the idea espoused in TFA is really already a fact WRT computer software.

OTOH, things like business method patents are a whole different story -- here there's generally nothing tangible involved. It's really quite a large step from "may seem intangible as long as you don't think about it much" to "really and truly intangible."

Re:So if the boundary for patent legitimacy...

[mavenguy]

Well, it's not the code, per se, that's protected; it's really executing the code on some sort of data processing system that's protected. IANAL, but I believe that if I sell (or "license" as it's usually legally done) you some code that infringes some one else's software patent, then I can still get nicked under the doctrine of "contributory infringement", so it amounts to the same thing.

Re:So if the boundary for patent legitimacy...

[Jerry Coffin]

Well, it's not the code, per se, that's protected; it's really executing the code on some sort of data processing system that's protected.

Or the method of operating the data processing system (using the code) -- which sounds like the same thing, but turns out (from a legal viewpoint) to be somewhat different. An apparatus claim covers an actual phsyical implementation, where a method claim covers its operation. There are legal limitations on how each type of claim can be enforced.

A method claim can be enforced against pre-existing (past) damages, but requires that you prove the infringement took place -- i.e. that the accused infringer not only produced a device that could infringe, but that they actually operated it in the infringing fashion.

An apparatus claim is a bit easier to enforce, since you only have to show that the apparatus includes all the elements of the claim, not that anybody has necessarily ever used it in the infringing fashion. OTOH, using an apparatus claim, you can only collect damages from the time that the accused infringer was actually warned of the possible infringement.

Of course, IANAL either -- and if I was, I probably wouldn't be handing out free legal advice on /. anyway, so you'd have to be insane to believe this was intended as legal advice even if IWAL.

Re:So if the boundary for patent legitimacy...

[Anonymous Coward]

I think you mean jibe.

Re:So if the boundary for patent legitimacy...

[msauve]

No.

When I use a word, it means just what I choose it to mean, neither more nor less. If you didn't understand what I meant, then why do you presume to correct me?

I strongly hope that Blackberry loses!

[mmell]

That way, Microsoft will be the next logical target (think of all those wireless-enabled laptops with Outlook Express preinstalled by default)!

What delicious irony! Microsoft sued for patent violation (or do you suppose they'll just settle, the way they did when SCO alleged Microsoft violation of their IP?)! Of course it's happened before, but still . . .

Sooner or later, USPTO is going to get caught in a self-contradictory or paradoxical situation; unfortunately, USPTO won't disappear in a flash of gamma radiation, but the implosion could be the motivator for some serious reform.

Re:I strongly hope that Blackberry loses!

[Sylver Dragon]

I'm also hoping that NTP wins this one. One of the best ways to get a bad law changed is to enforce it. If the big boys who own our government are forced to start dealing with the consequnces of the laws thay have bought, they will eventually pay to get those laws changed.

CmdrTaco should have patented this article

[PatentThis]

...so Zonk couldn't dupe it.

This has beenf covered...

[mavenguy]

... on a technology news site.

In the news..

[db32]

Today slashdotters were shocked when another tech writer repeated the idea that software patents are bad in yet another way. I think most people here, and throughout the industry, already know the multitude of problems with software patents. I don't think the problem is convincing people on the working side of the industry that they are bad. The problem is convincing the people profiting from software patents that they are bad. I would be interested in seeing industry leaders that can actually influence the decisions, or some politician types with the power speak out against software patents, but seeing yet another tech person do it is just getting redundant. You have to convince people that really like their money, why they shouldn't make money the way they are now. Until things get so bad that the top starts feeling the pain I don't things are going to get much better. Melancholy Elephants is an excellent short story by Spider Robinson about the end game of this situation we have these days. (It isn't terribly long, and it really is a good read) Enjoy!

Re:In the news..

[Rayin]

The problem is convincing the people profiting from software patents that they are bad. Not quite. While this would certianly aid in the fight, it is probably not possible to convince these people that patent trolling, which may net them millions, is bad. The people you need to convince are the legislators. It is going to come down to legislation to fix this problem, not convincing patent trolls that they are immoral.

Re:In the news..

[db32]

I kind of include legislators in those that profit from software patents. Sure they may not be the patent holders, and the ones directly profiting. But you can bet your ass that the ones raking in the big money with the patents are shelling out money to lobbyists, special interest groups, and campaign funds, etc. So I consider them in the same group, even if their profiting isn't quite so direct. Stopping software patents would stop the funds from rolling in to them to keep them quiet on the issue.

QED

[ObsessiveMathsFreak]

Mathematical algorithms cannot be patented.

All Software is mathematical algorithms.

Therefore, software cannot be patented.

The Slate can shove it.

Re:QED

[Intron]

Would that this were so. Unfortunately, a graphics company I worked for got hit by Cadtrak's patent on the XOR operation back in the day. This is a hardware patent based on the obvious fact that negating a value twice returns the original value. The inventor applied this to drawing and erasing lines on a screen and then sold the patent to Cadtrak who vigorously licensed it.

Its a good example of applying an obvious concept to a new application. Every TV set ever made uses an XOR to add and erase the HSync signal in the VSync, but that isn't drawing a line, so it doesn't count as prior art. Thank you, USPTO.

Re:QED

[Anonymous Coward]

"Would that this were so."?

I'm sorry. I'm not a native English speaker, so perhaps that combination of words in that order actually means something (perhaps it's some kind of insider joke, like "All your base belong to us"?). To me, it's plain jibberish. What does it mean?

Re:QED

[sholden]

It's a common enough phrase, meaning "It would be good of that were so, but it is not" (well close enough anyway). Possibly closer to "I wish this were so". It's really old usage (the King James Bible uses the construct, for example) .

Re:QED

[Anonymous Coward]

Could you write that up on Wikipedia?

Re:QED

[Anonymous Coward]

Personally, I think that comparing Cadtrak to mold on rotten meat is unfair to mold.

Software...Patents???

[Zardoz the Destroyer]

Software (loose definition): "Written coded commands that tell a computer what tasks to perform" Software is in otherwords language, so why, oh why are we trying to patent language? Would you think it's right to patent a love novel, a pirate story a crime thriller? If you're a belly crawling, ground living, amoral layer yes. Software should not be patentable, it should however be copyrightable. Software+Patents = Stupidity

Re:Software...Patents???

[Anonymous Coward]

Software patents are FAIR and JUST. Inventors deserve to be rewarded for their hard work. Otherwise, the CEOs and investors reap all the monetary rewards, and the inventor gets absolutely nothing.

To say that one is patenting the idea of the algorithm is non-sense. One is patenting a computer that is running the algorithm. You can read the code and study it without infringing. It's when you start running the code on a computer to get useful outputs that you are infringing.

Software patents do benefit small companies. They attract venture capitalists to invest in small companies that hold patents. Without the patents, investors would not take a risk on such small fry.

There is no difference between software patents and a patent for a new kind of toaster. Those who try to make a distiction run into all types of logical contradictions, like those who try to argue that time travel is possible. I think those who do not accept sofware patents are forced by logic to not accept any kind of patent. They are selfish people, acting out of their own self interest. They want to be able to take and use someone elses property without having to pay them anything. Such a system of property management is called Communism, and it has been shown not to work. It's hilarious that such people take the moral high-ground and portray all patent holders as evil. They are the ones that are evil communists, oink, oink, like the pig Napoleon in Animal Farm.

Sure, the US Patent Office could be improved. But that is different from saying that software patents should be abolished.

Re:Software...Patents???

[Lonath]

There is no difference between software patents and a patent for a new kind of toaster.

Let's say someone patents a new machine that makes some cool sounds. Their patent a machine and use of the machine (method and apparatus seems to be the term people use here) that produces a specific set of sounds. The purpose of the patent is to protect the process of using the machine for making those sounds. Then I legally buy the machine and can legally use it and I record the machine's output onto CD's and sell them on Ebay. Have I violated their patent on that machine that produces that specific set of sounds?

Re:Software...Patents???

[x86processor]

You can download and listen to RMS's "The Danger of Software Patents" from http://www.shakthimaan.com/downloads. The audio is in .ogg format. I have made the presentation slides in .sxi and .pdf format.

My new patent: "select * from"

[tokengeekgrrl]

My unique algorithm prefix enables the extraction of data as contained within a one or multi dimensional data storage array that may or may not be indexed by key values of a primary or foreign nature.

I, hereby, charge a $1 licensing fee per instance of my patented algorithm used in all commercial or commercially viable applications.

- smarta**geekgrrl

Re:My new patent: "select * from"

[Anonymous Coward]

Well you could in fact patent a method by which "select * from" actually does "enable the extraction of data as contained within a one or multi dimensional data storage array that may or may not be indexed by key values of a primary or foreign nature" if you did it in a novel and non obvious way.

Re:My new patent: "select * from"

[Anonymous Coward]

smarta**geekgrrl - What's this? A GIRL on Slashdot....now that IS newsworthy... :)

Who is "they"?

[qcs-rf.com]

From the article:

They want to fix the PTO to ensure that only the best, truly novel inventions get a patent...

Who decides which inventions are the best and truly novel? To note two inventions mentioned in the article, the Blackberry may be great for on-the-road execs, but it doesn't mean squat to my neighbor-lady. The cat exerciser may be great for my neighbor-lady, but the Blackberry won't do her any good.

I would assume that "they" refers to the big companies who want to get "their" patents approved, which I think means that innovation on behalf of the little guy will fall through the cracks even moreso than it does now.

Re:Who is "they"?

[atta1]

Obviously you didn't read the patent for the cat exerciser. The object described was a laser pointer.

The Concept of Software Patents Makes Sense

[frohsinn]

The concept of software patents makes sense, it's just that the PTO has been way too lenient in applying the definition of novelty. I believe that in order for an invention to meet the standard of novelty, it must be "nonobvious to one skilled in the art".

Many of the points in the article were really stupid.

The analogy about fences protecting pieces of real estate made no sense at all -- putting a fence around your land hasn't enabled anyone to patent their piece of property! Furthermore I could do a pretty good job of keeping people out of my algorithm by building a fence around any implementation (for instance, by burying the algorithm in an antifuse FPGA), but again, this has no bearing on patentability.

The fact that algorithms are compositional and therefore harder to draw boundaries around isn't unique to software either. Many other disciplines, including material science, chemical process design, and the article's own pet area of molecular design itself make use of elements that are compositional. Algorithms are compositions of operations on 1s and 0s, just like chemistry is about C, H, O, N, and friends. Or an algorithm is just a Turing machine, and chemistry is about protons, neutrons, and especially electrons. Pick your level of decomposition, but algorithms and physics are still both compositional in a very fundamental sense.

In a more fundamental sense, Computer Science is a branch of Mathematics - number theory in particular. A mathematical fact is not patentable, but the application of a mathematical fact to solve a particular problem is. So you can't patent 1+1=2, but you could patent the application of 1+1=2 to solve a given problem, as long as the application of 1+1=2 to the problem at hand met the standard for novelty. Thus the use of an algorithm to solve a problem should be patentable as well.

This places mathematics on the same ground as the laws of physics. You can't patent gravity, but you can patent the use of gravity for solving a problem.

Re:The Concept of Software Patents Makes Sense

[therevolution]

The analogy about fences protecting pieces of real estate made no sense at all -- putting a fence around your land hasn't enabled anyone to patent their piece of property!

You're reading too deep into the analogy. As another commenter already pointed out, the idea is that if you can't build a fence around it, it's not patentable. Nobody is talking about patenting property.

Many other disciplines, including material science, chemical process design, and the article's own pet area of molecular design itself make use of elements that are compositional.

Sure, but guess what? Molecules exist. Chemical companies don't produce chemicals that no one can see or touch. Software is not "real" in the same sense.

Or an algorithm is just a Turing machine

No, an algorithm is what you do with a Turing machine.

Re:The Concept of Software Patents Makes Sense

[Phroggy]

In a more fundamental sense, Computer Science is a branch of Mathematics - number theory in particular.

Computer Science may be a branch of mathematics, but software development is a lot more complicated than that. That's like saying pottery is a branch of chemistry, because it's just working with materials that are designed to change their physical structure when you bake them in a kiln. Science only provides the tools, in both these cases.

Re:The Concept of Software Patents Makes Sense

[Anonymous Coward]

as others have said, you're a moron

Re:The Concept of Software Patents Makes Sense

[techno-vampire]

No, an algorithm is what you do with a Turing machine.

Really? And all these years I thought it was what you rode around in on your vacation. Silly me!

Re:The Concept of Software Patents Makes Sense

[frohsinn]

The dichotomy between software engineering and computer science is well-known. Being a potter doesn't make you a chemist, and vice-versa, being a chemist doesn't make you a potter. Similarly, being a software engineer doesn't make you a computer scientist, and vice-versa, being a computer scientist doesn't make you a software engineer. Don't confuse software engineering with computer science. The foundation of computer science, namely the Theory of Computing, is a branch of number theory.

Re:The Concept of Software Patents Makes Sense

[frohsinn]

Software and molecules are different. But software is real in all the ways that matter. You can get a job architecting software, designing software, building software, testing software, selling software, etc., etc. Failures in software can have drastic economic consequences and can result in the destruction of property and the loss human life.

If your software project is late, see how far you get by saying "it isn't real anyways".

Re:The Concept of Software Patents Makes Sense

[therevolution]

You seem to enjoy taking words and twisting them around to make the source look less credible. You're also really bad at it.

Mickey Mouse is real, too. Disney can't patent Mickey Mouse. They can copyright him, but they can't patent him. Regardless of the way you want to define how something is "real," that doesn't necessarily make them patentable.

Re:The Concept of Software Patents Makes Sense

[frohsinn]

Hey Rev:

I'm not attacking the credibility of the source at all. I have no credentials in this debate at all. I presume the source has better credentials than I do, so my debate is about the idea itself rather than the pedigree of the source.

I have the opinion that the "fence" analogy isn't very useful. I'm questioning the fence analogy at two ends of the spectrum. First of all, what does a "fence" have to do with getting a patent? The analogy is not at all obvious.

Secondly, there are numerous ways to protect or "fence" a piece of software. So the fence analogy doesn't distinguish software from a physical asset.

Let me phrase it this way. Are you willing to say that the ability to "protect" or "fence" a certain category of property is sufficient grounds to make that category of property patentable? If that's the argument, then software would seem to meet this protectability qualification. So the "fence" analogy actually comes out in favor for patenting software, which seems to be the reverse intention.

Software is "real" enough to protect with physical means.

Re:The Concept of Software Patents Makes Sense

[frohsinn]

You have enough mental acuity to call me a moron. I have enough mental acuity to comprehend the fact that you have insulted me. Doesn't this prove that neither one of us are morons?

Re:The Concept of Software Patents Makes Sense

[therevolution]

The fence analogy is like this: if your invention is the "land," then its patent is the "fence" protecting it from being "stolen" by others. The analogy ends there; be careful not to derive meaning from it that doesn't exist.

Are you willing to say that the ability to "protect" or "fence" a certain category of property is sufficient grounds to make that category of property patentable?

No. There are several requirements for a patent, but whether or not it's protectable is not one of them.

Re:The Concept of Software Patents Makes Sense

[frohsinn]

Rev:

So being able to protect something has no bearing on patentability. So what is the point of the fence analogy again?

Re:The Concept of Software Patents Makes Sense

[therevolution]

I explained it in my last post. You either need to look a little bit closer, or you need to look up the definition of "analogy." I suspect it's the latter.

A patent alternative?

[Pavel Stratil]

While I'm no economist, whouln't everyones life be easier if there were no patents but everything you buy would have, say, a 2% extra tax which would be then distributed amond the developping companies according to the marketshare of their product or products based upon them? This would be received by the company for, say, 10 years since the product is sold...

Patentability 101

[Anonymous Coward]

Here's a quote from wikipedia on 'patentability':

Patent laws usually require that, in order for an invention to be patentable,

* it must be of patentable subject matter, ie a kind of subject-matter that is eligible for patent protection,
* be novel,
* be non-obvious (in United States patent law) or involve an inventive step (in European patent law);
* be useful (in U.S. patent law) or be susceptible of industrial application (in European patent law).
[* see below for formal conditions such as 'sufficiency of disclosure')]

Usually the term "patentability" only refers to "substantive" conditions, and does not refer to formal conditions such as the "sufficiency of disclosure", the "unity of invention" or the "best mode requirement".

Under United States patent law, inventorship is also regarded as a patentability criterion.

--source: http://en.wikipedia.org/wiki/Patentability

re Thanks Great Read!

[jelizondo]

- Risking offtopic rating -

Thanks for posting the link to Spider Robison's Melancholy Elephants. It is a great read and something that legislators should have rammed into their brains!

Wrong

[NotZed]

The concept of patents full-stop doesn't make sense.

It's an out-dated concept which only serves large corporations, and even then, not in a particularly effective way. It reduces information sharing, which means it increases the cost of innovation - which clearly causes harm to the greater good.

Re:Wrong

[scdeimos]

It's an out-dated concept which only serves large corporations, and even then, not in a particularly effective way.

Actually patents were originally implemented to protect the little guys from the large corporations. By patenting something you were able to publicly disclose your inventions saying "this is my idea," and not have any disputes about who invented what or when. First in, best dressed.

It's not patents which are broken, it's the f**king lawyers, their nit-picking, their loophole-finding and their extravagant fees.

Re:Wrong

[Ekarderif]

Actually, the point of the patent was to increase information sharing. A patented product (at least in the US) must disclose all the steps necessary to create the end result; the owner then owns the exact method for a few years (which he is capable of doing anything himself but anyone who uses his method must receive his permission). This was implemented to counter trade secrets (a la Coca-Cola) by providing incentive (exclusive rights for a short period of time) to those who open up their innovations; reverse engineering a trade secret is perfectly legitimate (Pepsi), but reverse engineering a patent means nothing since everybody already knows how it's done.

The problem isn't the idea of patents. They exist for many reasons and have proven to work immensely. No, the problem lies in software patents. I'm not against software patents in general, but 20 years is far too excessive. If we reduct it to one year or some equivalent, there wouldn't be such fiascos. The software world changes quick, and thus so should the laws protecting them.

Re:WTF???

[Otter]

This is fucking retarded. I called dupe a full FOUR MINUTES before you, and I get modded down for "redundant", while you're bumped up for insightful?

Given that neither of us had the composure to come up with "Sorry, Zonk. Cmdr Taco has TEH PRIOR ART on this story!!", I say we should both slink away in shame.

Physical patents are by far more evil

[argoff]

As society enters the information age, I think that any type of controll over information will be lost or change will be forced. So while I think that software patents must go first, I think hardware patents are by far more evil.

This is becuase software patents are about controlling information, but hardware patnets are about physical controll. To controll information often requires BS and deception, but to controll physically often requires physical coercion and violence.

Just as the false property of slavery was destined to end in a violent civil war as those who "owned" slaves lost controll, physical patents brought to their logical conclusion will result in the violent death of billions as society enters into the replication age and physical creation becomes more and more imposible to controll for the sake of monopolizing profit. In some ways we are already seeing a warm up. Millions in africa die of AIDS because access to generics are forbidden, millions of elderly are strongly pressured into using drugs which may lock in markets, but have all sorts of strange hidden side effects because the natural alternatives can't be patented. Safety devices on cars don't get installed causing 1000s of unneded deaths per year because other auto companies own the patent and won't let it be used. Billions and billions of incompatable parts and pieces to appliances that have no need to be incompatable except for patents. (and billions of uneeded enviromental waste because of it). The examples go on and on...

Re:Physical patents are by far more evil

[ajs318]

The US Civil War was not what brought about the end of slavery. The end of slavery was brought about by nothing more or less than the invention, and widespread adoption, of the electric motor. Civil war or no civil war, by the beginning of the 20th century there would have been no slaves in the USA; machines would have been doing all their old jobs. Even if it had been legal to own slaves, it would not have been economically viable to do so.

Software patents -- in fact, closed-source software in general -- will similarly be brought to an end by the release and widespread adoption of a general-purpose decompiler. This will take a compiled binary as its input; and emit something resembling source code which, when compiled, will produce a binary identical to the original input. The net result of the existence of a decompiler is that all software will be de facto Open Source. Freedoms Zero and Two are already being asserted, despite vendors' best efforts to stop them. Freedoms One and Three, which depend for their exercise on access to the source code, are next.

The output of a decompiler may not be identical to the initial source code -- in fact, it may not even be in the same programming language! However, as long as the output of its compilation is identical to the original binary, we can deem it to be equivalent. {This has profound implications for the field of collaborative development, since it effectively means that two people need not know the same programming language in order to work on the same project.}

The slogan of the Direct Action movements of the late 20th Century was "No harm to life, only property". The slogan of the Software Liberation movement is going to be "No harm to tangible property, only false 'intellectual property'".

If you think all this sounds like an unlikely proposition, ask yourself honestly: is it really any less likely than the idea that a flattened-out coil of wire spinning between the poles of two magnets could somehow lead to the destruction of the slave trade?

Barriers to entry

[Varitek]

The basic difference between drug patents and software patents is the barrier to entry. You can buy a $200 computer, a $50 book on programming, and be infringing on software patents later that evening. It also costs nothing to release that infringing code to the world. The only people likely to be infringing on drug patents, on the other hand, are well-capitalised pharmaceuticals companies, who can afford to research patents.

This is why software patents "feel" different to the Slashdot audience. None of us think we will infringe on a patent for an anti-depressant, but we don't like the idea of infringing on some obvious patented algorithm just by writing a few lines of code.

Re:Barriers to entry

[bitspotter]

I tend to think the cost of innovation should be a major criteria for patentability. Granting monopolies on the deployment of innovations only encourages innovation when the innovation would otherwise collapse for lack of R&D funding. Such a case would indicate that the R&D is too risky for the current state of the market unless a patent can be granted to exclude competition.

This makes some sense for things like drugs that require large investments to develop. Take away the patents, and, yes, you do solve the generics problem - but you dismantle the incentives for private companies to develop these medicines.

For software, on the other hand, this is ridiculous. the costs of developing software are pretty trivial. This results in an innovation explosion for very little money. granting monopolies does nothing to encourage innovation, because the costs of such innovation are not too risky for the market - they're cheap! In this kind of environment, patents actually backfire and //retard// innovation instead, by resitricting the ability to improve existing technologies.

As technologies of all kinds develop, costs continuously decrease. Periodically, patent adminsitrations should re-evaluate the costs of innovation in each market sector, and think about changing the kinds of innovations that are permitted patents based on the costs of innovation in each segment, rather than carte blanche.

Wouldn't work at all

[Ogemaniac]

Here is an example from the chemical industry, which I am a member of. In chemistry, a vastly disproportionate share of R&D goes to high-value added, low-volume products. However, most of the revenue and profit comes from low-tech, high volume products. For example, the major petro companies are often listed as among the top chemical companies if you use revenue as your only criteria. Why? Because they distill a gigantic amount of raw chemicals out of petroleum before the send the rest to be burned. However, the petro companies have far, far fewer chemists working for them as compared to a real chemical company such as Dow or Dupont.

Then, even within a company such as Dow and Dupont, most of the revenue (not necessarily profit) comes from selling things like bulk polymers or industrial grade chemicals. This is not where the bulk of R&D lies, however.

In short, there is no way for a bureaucrat to judge who is doing how much research or how valuable it is.

New Patent

[not-admin]

As of now I am patenting a method for the registation of producs to protect them from use by parties other than the registree. Anyone who wishes to use this system must pay a fee of not less than $50 to me.

Unfortunately NOT TRUE.

[Anonymous Coward]

Algorithms CAN be patented, and this is a big problem. For example, see this list of data compression patents:

http://www.faqs.org/faqs/compression-faq/part1/sec tion-7.html

For over a decade, everyone avoided using arithmetic coding for compression (even though under certain circumstances it was better than huffman coding etc) because the arithmetic coding algorithms were all PATENTED.

For example, IBM owns almost 20 patents on arithmetic coding:
4,122,440 4,286,256 4,295,125 4,463,342 4,467,317 4,633,490 4,652,856 4,792,954 4,891,643 4,901,363 4,905,297 4,933,883 4,935,882 5,045,852 5,099,440 5,142,283 5,210,536 5,414,423 5,546,080

A handful of other companies own patents on arithmetic coding too.

Fencing

[chub_mackerel]

Actually, this is exactly the test applied by the founder of the American patent system and its first examiner; Thomas Jefferson. For things which you can't put a fence around there is copyright.

While TFA uses the term "fence" to denote clear, definable boundaries, there's another interpretation that helps explain the essence of patent law:

The underlying purpose of the patent laws is to encourage the sharing of useful ideas. In order to get a patent you must publicly disclose how your invention works, and the "best mode" for using it (i.e. the best way to take advantage of its benefits).

As you can imagine, normally these are just the kind of disclosures that a profit-seeking inventor hates to make. The patent laws are thus designed to encourage more social, knowledge-sharing behavior on the part of even these self-serving entities. Note that the law is NOT about "protecting" or "rewarding" inventors per se, except as a means to this greater end.

Back to fences: Imagine that a company comes up with a new invention. The patent law gives them an alternative to "fencing it in" (by keeping it secret) and thereby preventing the public from learning about the discovery.

But note what this implies: if it's impossible to "fence in" the technology (i.e. prevent the spread of knowledge about how it works), then there's little reason for patent law to apply; The public would likely find out anyway, so why reward the inventor for disclosing? If knowledge is easily discoverable through some reverse engineering or simply by using a small amount of observation/experimentation, then the principled argument for patentability is weaker.

On the other hand, if an inventor could successfully use a new invention without the public ever learning how it worked (i.e. if it were possible to "build a fence" around the knowledge), then there's a good case to be made for offering the incentive for disclosure.

Just a different way to think about the "fence," that's all...

a plague

[jay2003]

I only reason to have patents of any kind is to encourage invention. If Congress were to amend the patent statue tomorrow to disallow software patents, no one would quit innovating. Trade secret and copyright provide more than enough protection for commercial software interests. Software patents only benefit the lawyers who get paid to create the plague in the first place.

Means and Ends Confused

[weston]

The original and valid purpose of a patent is to enable people who make investments in research to be compensated for the risk they take.

Not at all. That's the theoretical mechanism for the *actual* goal of patents: to provide for the progress in useful arts and sciences.

The profit motive can be a great incentive, but this is almost a poster child example of how easily it tends to distract people and make them confused about means and ends.

The coming patent Apocalypse

[typical]

The basic difference between drug patents and software patents is the barrier to entry. You can buy a $200 computer, a $50 book on programming, and be infringing on software patents later that evening.

I stronly suspect that no professional programmer has not infringed on US software patents. I occasionally do a keyword search for "computer" on the USPTO to see the latest tech patents, and I'm always appalled by what comes up.

It's not that they even always violate the rules of the USPTO -- sure, for a lot of them, there's prior art. It's that they are *never* clever ideas that another person wouldn't immediately think of if presented with the same problem. This simply does not drive technical advancement.

What I'm really scared about is the upcoming patent Apocalypse.

For the past decade or so, the rate of granting tech patents has *vastly* accelerated. There are now a huge body of tech patents out there.

Thus far, we've only had a few problems with tech patents -- usually the ones that are getting long in the tooth, about to expire, and ones that the holders feel that they have to hurry up and make money on. Kind of like the GIF/LZW patent from Unisys.

Towards the end of a patent's life, whoever is holding the patent -- maybe an inventor, maybe a patent troll, maybe a company in financial trouble (a la SCO) knows that they are in a "use it or lose it" situation. It's just that there's about a fifteen year delay from the time that the patent is granted to the time that it gets really urgent to start litigating on it.

We've talked about patent reform, but no matter what happens, legislators will never, ever invalidate existing patents. To do so would produce business chaos -- business decisions were made based on the value of those patents, and there would be deep concern from companies if that IP value vanished.

Even if I turn on my computer tomorrow and discover that, wonderfully, Congress has officially banned the granting of software patents, there is still a decade's worth of glut of software patents out there.

What happens in another five years when software patent holders start warily eyeing the expiration date on their patents, wondering when they're going to make a return? Oh, sure, maybe IBM isn't going to go out and start suing people left and right, but they can easily sell their patents off to a patent troll. That way, they get a flat return on their patent and don't suffer any PR damage. Patent trolls don't give a damn about PR, because they aren't in a business where PR helps them in the least.

That's what worries me. And no matter how bad the situation gets, there isn't a whole lot that Congress can do. They can't reasonably do anything about *existing* patents. And there isn't much that the industry can do to work around the problem. Sure, they can ship software development jobs overseas to developers that aren't hamstrung by US software patents...but if you want to sell your finished product to the lucrative US software market, you *still* have to abide by the patents. This affects everyone, because just about every software development company out there depends on at least some US sales.

The problem isn't even just patent trolls. Given their recent exploits against Microsoft and similar folks, I'm pretty sure that IBM/MSFT/etc are more than happy to push for legislation that makes life miserable for trolls. But they sure as hell don't want to stop the stream of patents that *they* are acquiring. And there are *plenty* of bullshit patents going to both of those folks.

The really doubly frusterating thing is that if you're a researcher, a PhD that's gone into industry, almost always *have* to file for patents. It's a metric of "how well you're doing" in a field where it's *really* goddamn hard for your superiors to figure out how effective you are.

You've seen academics that have hundreds of papers with some authorship credit. Very, very few people have hundreds of papers worth of importa

P.S.

[kfg]

Please point me to the patent for a functional nuclear weapon.

KFG

Physically protect ...

[AwaxSlashdot]

I'll beat you if you break my patent. Isn't it "physical" protection ?

Is true...but

[ObsessiveMathsFreak]

It is true. Algorithims cannot be patented.

Unfortunately the USPTO is rather lax about applying its own criterea to patents nowadays.

Is "Deep Concern" justified?

[argent]

"business decisions were made based on the value of those patents, and there would be deep concern from companies if that IP value vanished."

How much intellectual property value is there in any software patent that can't be recovered within, say, three to five years? What software patents are actively being used to generate significant revenue? How long are they likely to continue generating that income? Could a transition period like that make sense?

Net Talk Live?

[Anonymous Coward]

Rim is being sued by a long off-the-air crappy Dallas-based TV show? :-)