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

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

[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

[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

[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

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: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.

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.