Paul Graham on Patents

volts writes "The always interesting Paul Graham has a new essay, 'Are Software Patents Evil?'. "A few weeks ago I found to my surprise that I'd been granted four patents. This was all the more surprising because I'd only applied for three...""

Comments

Patents are not what they are supposed to be.

[IntelliAdmin]

Its funny. The founding fathers of the USA wanted to have a patent system to protect the little guy. The little inventor that creates a new and novel item. That way a big bad company cannot steal it from him, and he never makes a dime. Now it seems that it is just used by slimy lawyers to use patents as part of an extortion scheme to shake down big companies. Alternatively a way for big companies to keep anyone from ever entering their territory. The sad part is I think it will only get worse - not better.

Re:Patents are not what they are supposed to be.

[rainman_bc]

Admittedly, these lawyers frequently obtain these patents from the little guy.

Sometimes it's just easier to sell your patent than it is to litigate.

Re:Patents are not what they are supposed to be.

[Anonymous Coward]

I think what's sad is that the intention of the patent system was never realized.

Re:Patents are not what they are supposed to be.

[Waffle Iron]

The founding fathers of the USA wanted to have a patent system to protect the little guy.

I don't think that they had "protecting" anybody in mind. What they really wanted to do was to entice people to publish their trade secrets so that their innovations wouldn't be lost to the public when the inventors died. Perhaps unfortunately, the chosen means to this end was by granting time-limited monopolies.

The problem is that the enticement part has become the all-consuming focus of the patent process, rather than the disclosure of useful trade secrets part. Now a lot of people think that patents are a form of property right a sacred as the rights to their favorite pillow, and the patents themselves most often have obfuscated claims that reveal little if anything that isn't obvious from a quick look at the protected products themselves. They extrapolate from the "protection" side effect of the way patents were implemented and mistakenly assume that that was the primary goal all along.

The inventor now gets far more than the original intended benefits (because he can now often shake down a large company for the profits to all of their business), without having to give up much of anything in return. Much like agricultural market subsidies, patents have become little more than a wasteful government entitlement program.

Re:Patents are not what they are supposed to be.

[TheZax]

What they really wanted to do was to entice people to publish their trade secrets so that their innovations wouldn't be lost to the public when the inventors died.

I really don't know what I'm talking about, but this is Slashdot, so i won't let that stop me ;)

But I think the idea was not so much to get their ideas when they died, but at the time people were inventing machinery that could be reverse engineered very easily. Patents were issued so that a competitor couldn't simply by a widget, take it apart, then mass produce it at the expense of the inventor.

Re:Patents are not what they are supposed to be.

[Anonymous Coward]

There weren't megacorps during the time of the founding fathers. Many of the founding fathers never believed in the ownership of ideas (see Jefferson's writings). The purpose of patents and copyrights is clear. It's a trade. You tell the public your secret methods and the public will grant you limited exclusive rights to those secrets. There was no little guy vs. big guy. No prevention of theft.

When patents and copyright laws are written to protect someone other than the public, they are an abuse of the article I section 8.

Re:Patents are not what they are supposed to be.

[Anonymous Coward]

The failure of limited IP with "good intentions" runs proportional to the failure of limited government with "good intentions". Where power exists, it will be claimed by those with the ability to claim it, exploited for their own benefit, and then expanded in scope. Show me a government which is strictly restricted in scope, and I'll show you a newborn government which is destined to expand its powers for the benefit of the power elite. It may not happen overnight, but it will happen. There is not one single exception in the history of organized coercion (government).

Re:Patents are not what they are supposed to be.

[Ulrich Hobelmann]

Basically this is true for most government intervention.

The goal sometimes is a good one, often to protect the little guy. The *real* outcome often is much worse, because politicians (and their brainwashed followers) often don't know jack about economics or reality.

So patents fit in perfectly with all leftist politics: the intent is great, but the real repercussions aren't (and often are opposite).

Re:Patents are not what they are supposed to be.

[nadamsieee]

I really don't know what I'm talking about, but this is Slashdot, so i won't let that stop me ;)

At least you're honest. The original intent of patents was to advance science. Protecting the inventor (via a time-limited monopoly) was only the means to that end, not the end itself. From FindLaw (speaking of both copyright and patent law):

"Only the writings and discoveries of authors and inventors may be protected, and then only to the end of promoting science and the useful arts."

Re:Patents are not what they are supposed to be.

[nadamsieee]

From the US Constitution, Article I, Section 8, Clause 8:

Clause 1: The Congress shall have Power...
Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Re:Patents are not what they are supposed to be.

[The_Wilschon]

The problem is that the enticement part has become the all-consuming focus of the patent process, rather than the disclosure of useful trade secrets part.

Interesting that this is pretty much precisely what happens when you attempt to bribe children to behave themselves. The focus shifts from good behavior being a good unto itself to good behavior being a means to get a piece of candy (a coke from the coke machine, a trip to the amusement park, whathaveyou).

Re:Patents are not what they are supposed to be.

[Anonymous Coward]

The link in your sig won't work. Put an "http://" in front of it.

The US Patent Office is very generous . . .

[ThiagoHP]

. . . you ask for threes patents and then you receive four! That's what I call "software patent granting-happy". Isn't it a way to earn more money as any granted patent is paid?

Re:The US Patent Office is very generous . . .

[jbrelie]

Buy three - Get one Free!!!

It's marketing. The tobacco companies do it all the time. (Thanks!)

Re:The US Patent Office is very generous . . .

[servoled]

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 [35 USC 1 et seq.].

What most likely happened is one of his applications was claiming multiple inventions, so it got split into two different applications through a restriction/divisional.

Re:The US Patent Office is very generous . . .

[Foobar of Borg]

What most likely happened is one of his applications was claiming multiple inventions, so it got split into two different applications through a restriction/divisional.

And when his attorney explained this to him, he probably said, "Yeah, whatever" and didn't really follow up on what was really going on.

Re:The US Patent Office is very generous . . .

[mavenguy]

What most likely happened is one of his applications was claiming multiple inventions, so it got split into two different applications through a restriction/divisional.

It could also be a result of a Continuation under 35 USC 120. (A divisional is made under 35 USC 121 which incorporates the formal requirements of section 120.)

Re:The US Patent Office is very generous . . .

[TekGoNos]

What most likely happened is one of his applications was claiming multiple inventions,

What about some facts, instead of speculation?

One application did indeed get duplicated and resulted in two different patents. Which both have the exact same abstract. Both have the almost the same description. (The newer one lacks the words "Here is an example of a url expressed in a form commonly used today:" and then removed the phrase "www.foo.com is the name of the server to which the request is to be sent. bar.html is the request that is to be sent to the server." which was duplicated in the old one.)
So, the only thing that is different in the two patents are the references and the claims. They are similar, but the newer patent is more wordy.

A sister comment linked to some patent law about "Continuation". I didnt fully understood the legalese, but it could be that the patent system had some build-in "extend before granted"-mecanism that results in two grants.

Yes

[pieterh]

They are.

It does not take a long essay to answer this.

And BTW, Paul Graham is wrong when he says, "if you are against software patents, you are against all patents".

All patents have the potential for evil. But software patents are guaranteed to do evil.

Question: why are there so few new software standards coming out and why do they take so much longer to produce? Answer: because every new software standard is a recipe for patent ambush. Implemented, use it, or use products based on it, and you will, if you make money, be sued.

Yes, software patents are evil because in the name of promoting innovation in a field, they actively destroy it.

Re:Yes

[moro_666]

i'd prefer to say that they are evil in their current form as they are implemented in the u.s. patent system.

  if software patents would apply only to commercial software (e.g. gnu staff could always use patented stuff as long as they give away the product for free, and microsoft would have to pay nice $$$ for the same thing), the patents would be better.

  but i think there's a higher chance of bush turning into a human being than this happening.

Re:Yes

[pieterh]

The patent covers the use of an idea.

The software itself, is simply an expression. The user of the patented idea is the person using the software. Today, most litigation is aimed at product producers because these have the money. But if one was to exclude (e.g.) FOSS from patent claims, then the patent ambush would simply shift onto large-scale software users.

It is difficult to see how the fact that one is using FOSS as compared to commercial software, to do the infringing, would change anything. If you are using someone's patented idea, they own you.

Re:Yes

[moro_666]

i was referring to the using of the idea.

  free/opensource software developers shouldn't be affected by patents at all, companys that make profit should pay eachother for them. simple and clean without any hooks.

  sure having no patents at all would be a nice bliss, but if you invent something that nobody in the universe would have figured out in the next 25 years, would you like to be uncredited for inventing it ? if gnu people would use the idea to make some free stuff, i wouldn't mind. if microsoft would use it in IE , i'd definitely like to receive some coverage for my efforts in inventing it.

  but this is just my vision, and not the attempt to find the ultimate truth.

Re:Yes

[rolfwind]

I agree with you. I usually like Paul Graham, but he is way off on this.

It sounds like he wants to prentend that patents won't play a big role and be "secondary" and without them, we're all screwed in the "alternative" he mentions.

But if patents are so great, and the alternative so bad, explain the advancement in first years of the computer industry up to the 90s.

It's also ironic that he puts says either you are for patents or you are against patents, if you are against software patents - because software patents are so far from what patents were initially supposed to be.

Re:Yes

[Vlad2.0]

A lot of people *would* mind if GNU decided to use their ideas to make free stuff. While it might not be me or you, it is their idea and their right to protect it. We should respect that.

I'm definitely *not* saying that all ideas should be patentable. Just that those that are should be respected.

Re:Yes

[Halo1]

free/opensource software developers shouldn't be affected by patents at all, companys that make profit should pay eachother for them. simple and clean without any hooks.

There are plenty of companies which develop FLOSS, individual FLOSS developers that make money developing FLOSS, and end users avoiding spending money on software by using FLOSS.

sure having no patents at all would be a nice bliss, but if you invent something that nobody in the universe would have figured out in the next 25 years, would you like to be uncredited for inventing it ?

You seem to think patents are some kind of reward or a natural right. They are not. They are just a tool available to government economic policy makers, which they can use to correct the free market if it doesn't work things out on its own for some reason.

if gnu people would use the idea to make some free stuff, i wouldn't mind. if microsoft would use it in IE , i'd definitely like to receive some coverage for my efforts in inventing it.

Patents, just like taxes, don't have anything to do with what you personally would like or not, but are only their to serve the public interest.

Re:Yes

[dmatos]

And if you've invented it, and are making your living off of selling it, how would you then feel if gnu people started offering it for free?

Re:Yes

[AlterTick]

if you invent something that nobody in the universe would have figured out in the next 25 years, would you like to be uncredited for inventing it ?

The patent system is intended "to promote the progress of science and the useful arts". "Credit" for inventing somethinghas nothing to do with it. The problem with software patents is that they end up staking claim to large swathes of knowledge, essentially bogging people down in trying to work around them rather than building upon past work. Software patents as currently awarded are about as ludicrous as allowing someone to copyright the use of the future tense in all written works. It totally misses the entire premise of the system-- protecting a specific implementation of a process-- and locks out all possible competition.

Re:Yes

[truthsearch]

Here's the basis of where he's wrong:

There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not.

Physical resources are a limited quantity. There's a strict limit to how many of these physical control systems can be produced. If I have a physical resource that means someone else doesn't. So if I manufacture my invention it limits others' ability to do so.

Software is an unlimited resource. We can copy it without taking the original away. Software isn't manufactured. It's written. And that writing is already protected by copyright. People are allowed to profit from coming up with the same literary ideas as others (e.g. The Da Vinci Code).

The other problem is that genuinely new ideas are hard to come by. Out of all of the software developers in the world many think of the things are now patented. If only the truely innovative ideas were patented there would be so few software patents we probably wouldn't care as much.

Re:Yes

[Anonymous Coward]

you simply presuppose it's right to "own" ideas. Your copy of an idea is NOT my copy of an idea, even if they're "the same" idea in some human woolly sense in your little mind. If I have the idea of adding a pinch of chile powder to your chocolate, it in no way stops you having a similar idea. We should simply have no truck with the overgrown toddlers who think they "own" an idea.

Re:Yes

[honkycat]

That argument works for copyright but not for patents. It doesn't cost an inventor anything in terms of materials if a competitor produces its own copies of his invention. Except in very rare cases where production is limited by the amount of resources available, both A and B can produce as many widgets as time permits.

The problem that patents purport to solve is when A invests his resources inventing a new widget, then B reverse-engineers it and sells it. A needs to charge a preimium to recoup his inventing costs, so B can undercut him. [*] This is the injustice that hampers innovation since there is now an incentive to let someone else do all the development.

The cost of producing the eventual product is irrelevant to this argument. The amount that B can unfairly undercut A is set only by the cost of invention. Beyond that, they're both limited by the same manufacturing cost of the widget.

[*] I'm not assuming anyone's male here, but English doesn't have a convenient gender-neutral animate singular pronoun. Sorry, ladies.

Re:Yes

[Anonymous Coward]

One thing that patents do not take into account is relative cost of implementation and useful lifetime. That I believe is where the greatest difference is between software patents and othres... although I think many others should also see a reduction in life expectancy.

Basically, for somethings that takes an enormous capital investment to get it going (you need to build a specialized production line etc.) it can be justified to have a 25 year life term on the patent. Software is not like that. Software does not require a huge capital investment in very expensive hardware. The little guy can actually develop a final product implementing a concept with little investment. Getting it to market is the only cost, and even then it's not the same as for hardware where you NEED a physical distribution system, not just a download site. At most software patents if acceptable should have a maximum lifetime of 24 months. Then, there would be no long term roadblocks to development. The main problem with (even legitimate, NEW INVENTION) software patents is that they put up ETERNAL roadblocks to new developments as far as the life cycle of software is concerned. 24 years is the same as "FOREVER".

The concept of initial cost of implementation and distribution should be taken into account when deciding the length of application of patents.

Now, the patents that should NEVER be granted, however, are patents on medication. The best interest of drug companies is not the welfare of the patients, but the bottom line. That creates an inherent conflict of interests where research on drugs was dropped because they were showing indications of being too efficient at curing a disease. Drug companies make profits from long term treatments, not short term cures. This puts a burden on the states. Either they help their citizens pay for drugs, or see potentially productive members of society become burdens when sometimes that could be avoided. And of course, I'm not talking about the personal tragedies that it implies. Drug cocktails for AIDS is a real panacea for drug companies. But NEVER expect cures from their research. Instead of granting patents on drugs, governments would save lots of money in financing more the university research into cures for diseases (not drugs necessarily... treatments without drugs are fine too). In the long term it would be less costly for society than maintaining drug patents to "finance research". Hah!!!

Re:Yes

[juan2074]

I came up with a new story called The DaVinci Commode, but publishers wouldn't go anywhere near it.

Now it is In the Crapper, and I don't think it will sell as well.

Re:Yes

[rossifer]

Ultimately, what Paul forgot to do was to separate "Patents" from "IP Law". The situation he describes is the situation without any "IP Law", i.e. without trade secret laws, without copyright laws and without patent laws (trademark laws aren't all that relevant to this question).

If we eliminate software patents, we are left with software copyrights and software trade secrets, which suffice to explain, as you said, the advancement in first years of the computer industry up to the 90s.

And, as another poster mentioned, we don't have to agree that being against software (and business process) patents means that you're automatically against all patents. His argument, namely that the patent office "prior art" test is so badly broken that software patents end up being worse than other kinds of patents merely underscores the real argument:

When you say that you are against software patents, you're really saying that you're against the current implementation of software patents that many of us have to deal with. There may actually be some better implementation of software patents that would actually promote software development better than copyright protection alone has done.

Not sure that I see how, but I concede that it's possible.

Regards,
Ross

Re:Yes

[Escogido]

Interesting point. However, supposing that happens, would that really change anything? It's an added cost for the product anyway, and to the end user it doesn't really make much of a difference to whom the money goes. So the producer would be about as interested in unattaching the patent string off the product as they are today... or wouldn't they?

Re:Yes

[MightyMartian]

What's rather pathetic about this essay is how, for half of it, Graham tries to convince us that software patents are just like any other patent and they ought to be allowed (sans obvious abuses, of course), but then turns around and says they don't do very much good. Who is he trying to kid here? He mentions the One-Click patent as an abuse, but you know what, Amazon did throw its weight around, and while it got a black with techie types, do you think Ma Kettle ordering Ten Thousand Ways To Cook Earthworms online is going to say "Oh my, I don't want to buy it from those nasty patent abusers."

Oh, and Mr. Graham, if you're listening, when someone like Steve Ballmer waxes poetic on going after competitors for patent infringement, the software industry in all its forms does take notice. Consider the FAT file system. It's a $#@!%%# linked list file system, hardly innovative and only successful because it was the cruddy FS sold with MS-DOS and later Windows, a file system that even Microsoft pretty much treats as legacy support. And yet not only does it win a patent for a linked-list file system, but now the rumblings are it wants to become a patent troll over it. Microsoft doesn't fit the Unisys model, and yet Linux may have to yank official support for FAT from the kernel and our blood little USB drives may now have a new Microsoft tax imposed on them.

Software patents are bad. They harm innovation, and now some even threaten interoperability. And guess what, Microsoft doesn't give a shit about black eyes, nor is it going to suffer an internal revolt if it goes after OpenOffice and Linux. Graham is talking absolute fantasy just to support a system that has become the terrain of abusers and scammers.

Re:Yes

[nasch]

"The problem that patents purport to solve is when A invests his resources inventing a new widget, then B reverse-engineers it and sells it." I thought the problem they purport to solve is when A invents something amazing, and dies without telling anyone how to do it. Which is no longer a problem, so if that's really the purpose of patents maybe we should get rid of them. Or if their purpose is what you say, then we should try to find out if they actually do that. If Giantcorp sees a small company doing something great (that isn't patented) wouldn't it be cheaper and better to buy them out than to copy them? Do patents really prevent secrecy, or are the applications (for the actually innovative inventions) so vague as to be useless for that purpose?

Re:Yes

[legirons]

Paul Graham is wrong when he says, "if you are against software patents, you are against all patents".

While it does make some sense ("why should the first person to make a hammer be the only person allowed to make a hammer") it misses the obvious point that in hardware, you don't give away an infinte number of products for free.

That kind of messes-up the licensing issues, when you have something which can be duplicated and redistributed at no cost by anyone who receives it.

Re:Yes

[honkycat]

Getting the information published in the open is a benefit of patents, but I don't think it is the main goal. From the Constitution, Article I, Section 8, the right of Congress to issue patents rests on the following text:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

It's a little vague as to the definition (and I've not read enough history to be authoritative), but I believe that the text indicates the goal is essentially to encourage innovation. Losing unpublished inventions known only to the inventor is a pretty rare case, whereas there is a lot of economic pressure to "steal" inventions to avoid development costs. See, for example, the thriving generic drug market. :-)

No, I don't really consider that to be theft in the usual sense, hence the quotes. Regardless of how you feel about the ethics of recouping development costs at the expense of those who will die without the inventions (and ignoring the question of how honestly the pharmas account for their dev costs), that particular market is one where the manufacturing cost is negligible compared to development cost. It's all about knowing what particular chemical out of billions should go in the pills. Actually producing the chemical usually costs next to nothing.

Re:Yes

[AeroIllini]

I'm definitely *not* saying that all ideas should be patentable. Just that those that are should be respected.

But they are respected, without patents. It's called copyright.

Hardware gets patented. Software gets copyrighted. Giving software BOTH protections does nothing but generate a hostile and litigious marketplace.

Re:Yes

[dwandy]

if you invent something that nobody in the universe would have figured out in the next 25 years

There is nothing that one person will invent that another will also not invent. The greatest inventions of the past coupl'a hundred years were all invented by different people at about the same time:
Telephone: Bourseul, Reis, Gray, Bell
Radio: Marconi, Tesla, Lodge and Fessenden, Dolbear, Loomis
Airplane: Wright bros, Langley, Santos-Dumont

Patents and histroy books often only give credit to one person, but history is full of examples where the same ideas are being worked on by many people. This sums it up: (emphasis mine)

Still, we don't want to deny Bell's brilliance. He produced a robust and viable telephone, and he had the force of personality to sell it to a skeptical public. But to do that, he did what all inventors do. He built on the combined wisdom of others -- just as Reis had built on the work of Bourseul before him.

So I think there are two very important points in this paragraph. He built on what others had done before him, and was able to market it succesfully.

would you like to be uncredited for inventing it ?

So to the question of whether or not you would like to be 'uncredited' for your invention, I think you'll have to ask Tesla, since he was granted a patent but then posthumously had his patent revoked. How's that for a kick in the teeth? The current system in no way ensures credit be given where it is due...

Re:Yes

[dwandy]

It totally misses the entire premise of the system-- protecting a specific implementation of a process-- and locks out all possible competition.

Actually blocking out all competition is exactly the point of patents... software or otherwise. And as bad as they are for software, they are for all other fields...
There is no proof that innovation increases due to patents: the only thing guaranteed is that patents will be filed, and people will be sued.

Re:Yes

[dwandy]

Microsoft doesn't fit the Unisys model,

From TFA:

When you read of big companies filing patent suits against smaller ones, it's usually a big company on the way down, grasping at straws. For example, Unisys's attempts to enforce their patent on LZW compression. When you see a big company threatening patent suits, sell. When a company starts fighting over IP, it's a sign they've lost the real battle, for users.

Really? I think it fits perfectly. They haven't started suing yet because they are only on the brink of the downhill descent, where the talking happens. If Vista doesn't turn MS around, and they start to take a real slide in the sales and profts departments watch for them to follow this exact model.

Re:Yes

[sakshale]

If we eliminate software patents, we are left with software copyrights and software trade secrets, which suffice to explain, as you said, the advancement in first years of the computer industry up to the 90s.

Nicely stated. To prevent the problem of trade secrets becoming a block to innovation, Congress developed the patent system. To prevent the problem of someone simply copying your stuff and putting their name on it, Congress developed the copyright system. It wasn't until patents were applied to stuff that was traditionally copyrighted that this trouble developed.

Using the One-Click patent as an example, here is how I see it:

The idea of having a one click sales button should not be patentable. However, the method used (software written) to implement that idea can be copyrighted. That keeps me from having to spend time, money and effort on hiding my implementation (treating it as a trade secret), freeing me to continue to innovate, while protecting me from you simply copying my code and using it.

However, using the diamond cutting example mucks it up a bit. I develop an improved method of polishing diamonds. The idea of polishing diamonds cannot be patented. However the method used (rubbing with sandpaper) :), is not something you would normally copyright. Given the underlying belief that trade secrets are bad and that we want techniques to be published for the common good, how do we balance the two examples?

Re:Yes

[TekPolitik]

They are... It does not take a long essay to answer this.

I agree. I have always had a problem with Paul Graham because he is somebody who holds to situational morality - that is, his principles are negotiable depending on the situation he is in. The limits of what he considers acceptable go precisely to the limits of what he has already determined to do. In this essay he talks about how you have to patent because everybody else will - that it is acceptable because it is necessary, in his view. Things are only ever unacceptable to him if he has not found those things necessary in the course of his own activities.

Principles are only meaningful when you hold to them even when it is inconvenient to do so.

Let's take a look at Paul Graham's patents:

• Search engine using sales and revenue to weight search results;
• Remote web site authoring system and method (2);
• Remote web site authoring system and method (1); and
• Method for client-server communications through a minimal interface.

I see nothing there that is genuinely so innovative it deserves monopoly protection against others who might independently invent the same thing. At least one is blindingly obvious on its face, and the others seem to be nothing more than using natural combinations of existing uses ("next step in the road" type patents).

Re:Yes

[TekPolitik]

if you invent something that nobody in the universe would have figured out in the next 25 years

The problem, of course, is that it is unlikely that any software patent even comes a tiny fraction of the way towards meeting that description, and nevertheless patents penalise independent development of the same idea.

Re:Yes

[back_pages]

Question: why are there so few new software standards coming out and why do they take so much longer to produce? Answer: because every new software standard is a recipe for patent ambush. Implemented, use it, or use products based on it, and you will, if you make money, be sued.

Yeah, and the technology industry is clearly so stifled that it's about to roll over and die. The stocks are plummeting, the layoffs are massive and systematic, the pensions are being slashed, profits are unheard of, and only a fool would choose to study for a career in technology.

You have a truly persuasive argument. I am convinced that you know three, heck maybe even four things about the patent system. It's truly shocking that nobody in working in patents ever looks to Slashdot for insightful opinions. Of course, Slashdot wanks itself by moderating drivel like your post +5 Insightful, but hey nobody is perfect.

Re:Yes

[Anonymous Coward]

should not be patentable."

To be fair, "The idea of having a one click sales button" was not what was patented. What was patented was the following process:

1. Storing an ID on the client computer that identified the account associated with that computer based on a previous login.

2. Responding to an HTML form submission (i.e. the "one click") by accessing that ID (through the cookie method) and combining it with the submitted info.

3. This triggers the server to bill a credit card associated with a stored ID (i.e. the card info is not stored, just an identifier of the card; the identifier *also* includes the identity of the storer; in other words, only Amazon can collect money using that identifier).

4. If the transaction is accepted, an order event is generated.

However, I think that this fails my patentability test, which is basically, "Without patents, would the same thing have happened?" Personally, I think that it would have happened. I.e. I think that Amazon would have developed one click even if patents did not exist. Why? Because it makes it easier to buy stuff. Even if Amazon had had to give *everyone* the ability to do one click purchases, it still helped Amazon in that it made people more likely to impulse buy.

It's also worth noting that a lot of this is powered by things outside the scope of the patent. For example, the method that Amazon uses to take an ID cookie and use it to fetch account results within a fraction of their two second page emission (parse) latency. At the same time, they fetch product info (to determine cost of order). Subsequently, they bill the appropriate credit card. All three of those are hard problems. The third relies significantly upon an outside party (the credit card authorizer).

As a general rule, those are not patented. Instead, Amazon relies on trade secret law and Washington state's draconian employment law (it's one of the few states that allows non-compete clauses to be entirely front loaded; i.e. you work at Amazon for a week and quit; you can't work in e-commerce for eighteen months; by contrast, European non-compete clauses would often require the company to pay you during that eighteen months or sacrfice the clause).

Re:Yes

[Weedlekin]

Software actually has three protections: patents, copyrights, and licensing agreements, which unlike simple copyrights, tell you how you are allowed to _use_ a product.

bzzzzzzzzt - wrong!

[Spy der Mann]

One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general.

Wrong. Hardware patents are necessary to commercialize new products and keep innovation. Some medicine patents are also necessary, but I believe there are cases where patent licences should be greanted for only a little time - like cures for cancer, AIDS, or the avian flu.

But patents for software or business methods are an aberration.

Re:bzzzzzzzzt - wrong!

[MindStalker]

Your argument of course is missing any facts that would lead someone to conclude you are write and he is wrong. Paul Graham has an interesting idea, but realistically he is missing two big points. In a phyiscal invention the gears and levels are easy to take apart to see how they work. This is one reason patents (which are basically copyrights for physical things) are nessesary, as reverse engineering is easy in the physical world. In the computer world copyright and keeping your source secure, is effectivly your assurance that someone won't simply rip off your idea.
Though I can think of a few things that could have been nonobvious and easily copyable in the early days of computing. Spreadsheets come to mind. I'm glad these wern't patent, as we innovation would have halted for many years in the database world.

Re:bzzzzzzzzt - wrong!

[Buddy_DoQ]

You've just gotten home from the doctors office. You've got 6 months, at best. Someone finds a cure three days later. They file for a patent and refuse to give it up for less than x$ where x = extreme. 12-16 months later they sign a deal with a major medical company who then sells it for x$ where x = extreme and they refuse to lease the cure to competitors and sue the pants off anyone who uses an unlicensed cure. Tell me that is not evil? I dare you. Cures for major causes of death should be issued in bulk by your government for free (Tax Dollars) not protected by patents.

Re:bzzzzzzzzt - wrong!

[TubeSteak]

but I believe there are cases where patent licences should be greanted for only a little time - like cures for cancer, AIDS, or the avian flu.

I was just reading in the new BusinessWeek that Pharma companies are gathering up for a big lobbying push to change the way their drugs recieve patent protection.

They aren't happy with the current 20-years-from-date-of-application, instead they want 15 years from date of approval.

Additionally, they want 15 years (instead of 5) of protection for their clinical research data, which will effectively choke off generics until after the 15 years would be up. Clinical research is expensive, but generic meds get around this by using the original research as part of their application to the FDA.

The article did say that it seems unlikely the pharma companies will get what they want, since the Gov't (due to the Medicare prescription drug coverage) is now footing a large portion of the bill for drugs.

Re:bzzzzzzzzt - wrong!

[ergo98]

Cures for major causes of death should be issued in bulk by your government for free (Tax Dollars) not protected by patents.

You're basically calling for the socialization of medicine, which historically has been a really, really, really terrible model. You know -- where those cures never actually appear, and instead of complaining about those evil drug companies, you enjoy your 35 year lifespan and die away.

Imagining cures popping out of nowhere and doing away with major illnesses is pretty romantic, but in reality they appear because of the carrot of revenue.

Re:bzzzzzzzzt - wrong!

['nother poster]

Spreadsheets non-obvious? That was a joke, right? They are the representation of a physical ledger sheet on a computer screen with logic to allow the basic math that you would perform on paper. It is simply a ledger sheet on the computer. People have been doing it on paper for centuries. Pretty obvious if you ask me, not that USPTO would have gotten it right.

In physical patents there is a requirement that the patent applied for not be a simple transformation of an existing patent. You can't get another patent by changing the material something is made of. I can't replace the oxygen atoms in a molecule with chlorine and claim it as a new invention. They allow that kind of crap in software all the time.

Re:bzzzzzzzzt - wrong!

[DrPizza]

I like the well-reasoned argument you give.

Oh, wait, you didn't. You just made an assertion "hardware patents good, software patents bad" without doing even the slightest thing to justify it.

All the arguments for hardware patents can be made for software patents.
All the arguments against hardware patents can be made against software patents.

To object to one but not the other is inconsistent.

Re:bzzzzzzzzt - wrong!

[Halo1]

All the arguments for hardware patents can be made for software patents. All the arguments against hardware patents can be made against software patents.
To object to one but not the other is inconsistent

Yes, it's really annoying, this inconsistent Federal Trade Commission, saying that patents do not have the same effects in all industries. In a sense, you're somewhat right, because they note that patents have little effects as driver of innovation in the semiconductor industry too.

Or maybe the National Research Council, claiming that the software industry is quite different from traditional industry sectors for various reasons.

Or maybe the Max Planck and Fraunhofer Institutes? (the latter even own some patents on mp3 compression)

Re:bzzzzzzzzt - wrong!

[matvei]

In a phyiscal invention the gears and levels are easy to take apart to see how they work. This is one reason patents (which are basically copyrights for physical things) are nessesary, as reverse engineering is easy in the physical world. In the computer world copyright and keeping your source secure, is effectivly your assurance that someone won't simply rip off your idea.

There is another way in which software inventions are essentially different from physical inventions. In the physical world having an idea, and specifying it in detail is only the first (and relatively cheap) step. Getting your invention from the drawing board to mass production can end up being a very costly and risky undertaking. Patents are needed to assure the inventor, that after he has spent the needed resources to create a new product, he won't get ripped off by other companies which have waited to see how the R&D project pans out.

The world of software is different. As you summed it up in your last sentence, securing the source code prevents people from ripping the idea off. That's because the source code is the idea, described in ultimate detail, while simultaneously being a product that you can sell. There is no expensive process needed to transofrm the idea into a product, describing it in detail is enough. Because of that, software patents don't encourage anyone to bring new products to the market (thus increasing competition) -- quite on the contrary, patent holders are using them to stifle the competition's attempts at doing that.

This makes regular patents good but software patents purely evil in my book.

Re:bzzzzzzzzt - wrong!

[DrPizza]

I'm not really sure what point you're trying to make. Just because groups pretend that there are meaningful differences does not mean that they are correct in their appraisal.

Re:bzzzzzzzzt - wrong!

[Halo1]

At least they argument why they think there are differences, while you don't provide any argument at all. The point is that you should read their arguments.

Re:bzzzzzzzzt - wrong!

[Anonymous Coward]

Cures for major causes of death should be issued in bulk by your government for free (Tax Dollars) not protected by patents.
If this were the case, what incetive would corprate america have to develop such a cure.

I don't believe in patents on life saving medicine either, but I do believe there needs to be some huge incetive for the private sector to develop them. What the answer is in this case; I don't know. The US has made huge leaps in medical science because of privitization and copyright/patents of drugs and medical technology... That needs to continue. At the same time, it needs to get into the hands of the people who need it.

Re:bzzzzzzzzt - wrong!

[shaitand]

Personally I am against both software and physical patents at this point. Patents were never about inventors rights. Patents were supposed to be a way to get inventors to reveal how their machines functioned so that society could benefit from them after the patent expired. It's not like someone is entitled to exclusive rights simply because they develop the next step in technological progression first.

To that end, there is no evidence of patents increasing innovation at all. In fact, there is plenty of evidence to suggest that they have reduced the speed of innovation. Software is easily reverse engineered and so are physical inventions. Although it may be easier to devise the function from a patent than reverse engineering it will not take decades. At this point it really is much more beneficial to toss out patents. One good example of delayed innovation is the steam engine; the inventor literally held up the entire industrial revolution by the length of his patent.

Re:bzzzzzzzzt - wrong!

[AlterTick]

Additionally, they want 15 years (instead of 5) of protection for their clinical research data, which will effectively choke off generics until after the 15 years would be up. Clinical research is expensive, but generic meds get around this by using the original research as part of their application to the FDA.

That idea is utterly absurd. The entire purpose of the patent system is to encourage the spread of knowledge and prevent the wasteful duplication of effort caused by protective secrecy. The exclusive term of the patent is already their "carrot" for spending that money to bring a drug to market. Part of the deal is that they have to make the process public. It's no more reasonable to make the generics re-do the trials than it would be to make them re-discover the drug in the first place.

Re:bzzzzzzzzt - wrong!

[honkycat]

In a phyiscal invention the gears and levels are easy to take apart to see how they work. This is one reason patents (which are basically copyrights for physical things) are nessesary, as reverse engineering is easy in the physical world.

I disagree. It's actually straightforward (but tedious) to reverse engineer software by looking at the binary. Compared to a complex machine or a device consisting of integrated circuits, it may even be easier. Copyright on the software may provide some protection, but there are well-established ways to get around that (e.g., clean-room implementations).

Re:bzzzzzzzzt - wrong!

[Anonymous Coward]

>>...I believe there are cases where patent licences should be greanted for only a little time - like cures for cancer, AIDS, or the avian flu.

If I cannot reap great rewards from products that are expensive, risky and time consuming to produce, I will not invest in such work.

I am not a charity. It is part of how I make a living. I take great risk when investing in such (witness what happens when the research proves fruitless or, even worse, harmful). If the potential reward is less, I won't take the risk - any more than other such investors.

If you expect government to pick up the slack, then have pity on us all. It is notoriously inefficient in this realm.

If you dislike my motivation, then please come up with a more efficient mechanism for driving such work.

(Yes, I invest in biotech and pharma).

Re:bzzzzzzzzt - wrong!

[Anonymous Coward]

In the computer world copyright and keeping your source secure, is effectivly your assurance that someone won't simply rip off your idea.

This is false. If it were true, there would be no software reverse-engineering. But there is tons of reverse-engineered software. Look at WINE -- they don't have the Windows source code, but they can still clone Windows.

Re:bzzzzzzzzt - wrong!

[The_Wilschon]

I like the well-reasoned argument you give.

Oh, wait, you didn't. You just made an assertion "Hardware patents are identical to software patents" without doing even the slightest thing to justify it.

To object to GP post, but not to yours is inconsistent.

Re:bzzzzzzzzt - wrong!

[DrPizza]

The article already briefly outlines why they're the same; I don't feel any particular need to restate it, since we've all read it prior to posting comments. Right?

Re:bzzzzzzzzt - wrong!

[DrPizza]

They don't appear to make any arguments that hold up to any kind of scrutiny; all the points in favour of hardware patents are applicable to software patents.

Re:bzzzzzzzzt - wrong!

[TekPolitik]

I can think of a few things that could have been nonobvious and easily copyable in the early days of computing. Spreadsheets come to mind.

You are mistaken. Spreadsheets were merely an electronic implementation of an approach already used by accountants and bookkeepers. While the accountants and bookkeepers had to calculate cells on their own, the implementation of electronic spreadsheets was evolutionary, not revolutionary.

Re:bzzzzzzzzt - wrong!

[Anonymous Coward]

Um, they do have the windows source code just like everybody else. Oh SURE they've never looked at it... that arguement will really hold up in court...

Re:bzzzzzzzzt - wrong!

[runderwo]

I believe there are cases where patent licences should be greanted for only a little time - like cures for cancer, AIDS, or the avian flu.

Why? Doing that would only ensure that nobody would invest in those areas or devote resources to research. A better plan would be to have a rich philanthropist write a blank check for the costs of developing the cure, if in fact it is ever developed (most pharma companies are more focused on managing symptoms than ever curing anything, because a continuous revenue stream is more attractive to investors).

If someone promises to underwrite the costs of development, the need for the patent system with all its evils is utterly neutered in that case - as long as finding a cure is in fact even a realistic goal.

Re:bzzzzzzzzt - wrong!

[Anonymous Coward]

Wrong. Hardware patents are necessary to commercialize new products and keep innovation.

Wouldn't it be embarrassing if a patent examiner pointed out that Tanenbaum writes that "hardware and software are functionally equivalent" in Structured Computer Organization?

It was Sun Tzu who humbly suggested that you know your enemy. I've been reading Slashdot on patents for years and can firmly say that there are fewer than 20 regular UIDs that are anything but blatantly ignorant.

It would only take about half an hour to read "State Street Bank & Trust Co. v. Signature Financial Group," the Federal Circuit case that opened the door for software patents. The court's written opinion is readable and requires neither intricate knowledge of the law or patents. Among those who know and work with the system typically regard State Street as one of the most curious and inconsistent decisions in patents, and these are the experts. State Street is a bit like "vi vs emacs" in that the issue can be rephrased infinitely many ways and nobody has a truly objective measure for determining the winner.

Physicists struggle with cold fusion. When some Joe Sixpack who never went to college claims to have the solution, it's not surprising that he isn't taken seriously by physicists. Well, when Slashdot pats itself on the back for knowing the solution to the software patents issues, it's not shocking that nobody really cares.

Until Slashdot collectively decides to quit regurgitating the same uninformed groupthink, it will persist as a side joke to the patent system. And that is precisely what it is to date. Just a suggestion - know your enemy. If hardware patents are so innocent and software patents are so bad, maybe it's worth thinking about Tanenbaum a little more. And if you think you have the perfect zinger to shoot down this argument - give it your best shot, but I assure you that the argument fails.

And if I'm truly, truly wrong, all you stand to win is that Slashdot remains a joke.

Re:bzzzzzzzzt - wrong!

[Halo1]

If you haven't already, you should really consider a job in politics :)

Oh Boy

[Anonymous Coward]

Another article by Paul Graham about how brilliant Paul Graham is. Just what we need.

He's Recognized Us!

[eldavojohn]

The most common is to grant patents that shouldn't be granted. To be patentable, an invention has to be more than new. It also has to be non-obvious. And this, especially, is where the USPTO has been dropping the ball. Slashdot has an icon that expresses the problem vividly: a knife and fork with the words "patent pending" superimposed.

The scary thing is, this is the only icon they have for patent stories. Slashdot readers now take it for granted that a story about a patent will be about a bogus patent. That's how bad the problem has become.

We "take it for granted?" What's that supposed to mean? That there's some novelty in finding bogus patents? I don't think so ...

On the contrary, it's shocking and down right insulting that some of these patents have been granted. I think Mr. Graham hit the nail right on the head when he said the USPTO is dropping the ball on granting obvious ideas patents. As I've pointed out before, they've patented the progress bar and they'll patent more stuff too. If you say that it's a very specific patent of a progress bar, I'll argue that the claims listed on that patent are enough for a fancy law-talking guy to take and scream patent infringement against every piece of installation software ever made.

You know, time and time again there are stories about the horrors of patents. But what are we actually doing about it. Are there patent protests? Are we screaming foul play in the NTP Vs RIM court case? No, we aren't. We're just sitting back and watching patents get out of hand. I know I can, as well as Paul Graham, point out the problems with patents but what solutions are there to explore?

Re:He's Recognized Us!

[sim60]

The scary thing is, this is the only icon they have for patent stories. Slashdot readers now take it for granted that a story about a patent will be about a bogus patent. That's how bad the problem has become.

We "take it for granted?" What's that supposed to mean?

That it's automatically assumed by readers of /. that any story on a patent will be about a bogus patent.

Fairly common usage, I would have thought.

Re:He's Recognized Us!

[bzipitidoo]

but what solutions are there to explore?

I'm sooo glad someone asked that question! ;) A common criticism of criticism is you shouldn't unless you have a better idea. I've been trying to come up with better ideas.

I think I've worked out a way to "promote the progress of science and useful arts" withOUT copyright and patent law. I've even run it up the flagpole here a couple of times, but no one's saluted. If you're interested in hearing more, let me know. I don't think it's an especially novel or radical set of ideas either, but it is far more radical than the usual suggestions of reforming the patent office so they do a better job, or tinkering a little with patent law to, say, reduce the monopoly period to 3 years or 5 or whatever. Graham says opposition to software patents is opposition to all patents. I agree, with one reservation. I'm against them all, but I'm willing to compromise to software patents for now because getting rid of just those seems much more possible. The reservation is that requiring a genuine working prototype device makes some of the abuses harder. As it is, it's possible to patent an idea that does work but for which we lack some crucial technology that is likely to be available in the near future but isn't right now.

Re:He's Recognized Us!

[Anonymous Coward]

As I've pointed out before, they've patented the progress bar and they'll patent more stuff too. If you say that it's a very specific patent of a progress bar, I'll argue that the claims listed on that patent are enough for a fancy law-talking guy to take and scream patent infringement against every piece of installation software ever made.

Actually, I'd say that they'd scream after Microsoft Defrag for Windows 95. The only difference between this and the patent itself appears to be the fact that everything is squeezed into one status bar.

From what I see:
- MS Defrag has a background task running.
- It's "action" button popups a large window that gives details on the status of the defrag.
- It's cancel button cancels.
- It's status bar shows how much of the task is completed.

Based on the wording of the patent, I think they mean multiple background tasks - but you can't be sure with barely understandable text. However, a single background task is trivial enough that it would qualify as a trivial implementation.

In my opinion - if you get attacked by this patent, claim that you plagerized the implementation from Microsoft Defrag. Or from one of the Common controls for that matter.

Re:He's Recognized Us!

[Orgasmatron]

The solution is pretty obvious, really: STOP DOING THAT! Stop granting software patents, and then stop enforcing them.

Paul Graham's opinion on patents not interesting

[Anonymous Coward]

Why would I want to hear what Paul Graham has to say about software patents? Why does he think he has anything useful to say on the topic? I heard a portion of this talk recently and I was surprised at the degree to which he was opinionated and yet not very informed. It was just philosophising.

Paul Graham is a great programmer. That doesn't make him an expert on every topic. Once he steps outside of his area of expertise, he's just another Paris Hilton, famous for being famous.

I'd be as much interested to hear what an IP lawyer has to say about Lisp macros.

P. Graham - yay for patenting thought

[Anonymous Coward]

Paraphrasing:

One thing I do feel pretty certain of is that if you're against literarary patents, you're against patents in general. Gradually fictional plots consist of more and more of the same old devices. There's nothing special about software instructions that should make them patentable, and the narrative equivalent not.

Software is literature, it's protected and published as such. Hope Mr Graham can find a suitably logical s-expression for his illogical certainties.

Good but idealistic article

[robotsrule]

I will only address one point of the optimistic idealism I saw in several parts of the article, there are others:

"A company that sues competitors for patent infringement is like a a defender who has been beaten so thoroughly that he turns to plead with the referee."

This point is made in the context of other statements that indicate this is the main reason that a company starts suing for patent infringement. The reality is there are companies that have no developers at all, just lawyers, whose sole purpose is to seek out and buy patents and pressure other companies for licensing fees. There are other companies/people who do nothing but try to think of patentable ideas to lay claim to, and never intend to build a product; only to extort license fees from others.

There are other examples of what the author would like to believe that gloss over the terrible realities of software patents; despite the many good points he does make.

Re:Good but idealistic article

[magetoo]

I will only address one point of the optimistic idealism I saw in several parts of the article, there are others:

"A company that sues competitors for patent infringement is like a a defender who has been beaten so thoroughly that he turns to plead with the referee."

This point is made in the context of other statements that indicate this is the main reason that a company starts suing for patent infringement. The reality is there are companies that have no developers at all, just lawyers, whose sole purpose is to seek out and buy patents and pressure other companies for licensing fees.

Yes, and he mentions them a page further down. You did read the article before posting, didn't you? Of course you did.

Re:Good but idealistic article

[robotsrule]

Yes I did see where he mentioned "patent trolls". But he does make the point:

"When you read of big companies filing patent suits against smaller ones, it's usually a big company on the way down, grasping at straws."

He says "usually" here so even though he mentions the companies I have highlighted in my post, I disagree that "usually" it's just big companies on the way out. About patent trolls he says:

"I don't think they hamper innovation much"

And I disagree with that, hence my post.

Re:Good but idealistic article

[alexhs]

I agree.

Another piece of idealism in TFA :

The third reason patents don't seem to matter very much in software is public opinion-- or rather, hacker opinion. In a recent interview, Steve Ballmer coyly left open the possibility of attacking Linux on patent grounds. But I doubt Microsoft would ever be so stupid. They'd face the mother of all boycotts. And not just from the technical community in general; a lot of their own people would rebel.

Good hackers care a lot about matters of principle, and they are highly mobile. If a company starts misbehaving, smart people won't work there. For some reason this seems to be more true in software than other businesses. I don't think it's because hackers have intrinsically higher principles so much as that their skills are easily transferrable. Perhaps we can split the difference and say that mobility gives hackers the luxury of being principled.

Microsoft commiting copyright infringements (Stacker comes in mind), using illegal or nearly illegal or illegal when a monopoly practices, using objectionable PR practices (FUD) don't forbid them to make lots of money. Some bright people are quitting because of bad management, but most people are following the money. What about those guys at Microsoft Research working on things that won't ever make their way to the product ? And there's nothing special misbehaving about patents.

Do they need bright people at all ? They just need offensive commercial practices and maybe a little PR. Employees are getting their check, "consumers" have almost no choice...

Re:Good but idealistic article

[Anonymous Coward]

> There are other companies/people who do nothing but try to think of patentable
> ideas to lay claim to, and never intend to build a product; only to extort
> license fees from others.

And this is my strongest objection to the software patent issue. The intent of patents is to protect an invention from being copied in exchange for publishing the details of its implementation. When patents are granted without any demonstration that the person/organization has actually built the darn thing, it's a problem.

I think there should be a "practical" portion of the patent process. If your application survives the first cut of being determined a new and non-obvious innovation, then you, the inventor, must appear before a patent board and demonstrate your patent in action. Each claim of the patent is then marked off like a score card. Any claim not demonstrated to the board's satisfaction is automatically thrown out.

AC

Re:Good but idealistic article

[Maximum Prophet]

there are companies that have no developers at all, just lawyers, whose sole purpose is to seek out and buy patents and pressure other companies for licensing fees.

The fix would be for there to be a legal requirement that you have a working product that is using your patent. I.e. Sony would be allowed to have the patent on Mind Control computers, but if someone else beat them to producing a working version, they'd loose the patent.

Anyway, I think the Singularity(tm) is going to hit us before the patent mess is worked out.

Re:Good but idealistic article

[shorgs]

He covers what he calls "Patent Trolls" later in the article. I think they are exactly what you are describing.

His foot-notes even suggest that the software industry as a whole could starve them out by agreeing to not do business with any law firm that represents Patent Trolls.

It would be interesting...the software industry generate a good bit of revenue for law firms. And the Patent Trolls are completely dependent on litigation as their sole source of income collection, what with no actual good or service.

I agree with your general discontent for how idealistic this article is. I just can't specify any specific section that I fault for that yet.

Re:Good but idealistic article

[robotsrule]

shorgs,

As I said in a reply to another poster, it's not that he left out the patent trolls that I object to, which he didn't. I did see his comments on them. It's that he states that patent "lawsuits" are usually by big companies going under and which I believe is wishful thinking and optimistic. He later states that patent trolls don't hamper innovation much which I also take issue with. So it's not the point he makes that I say is wrong, but his overall weighting of the primay reason for patent lawsuits that I find difficult.

new offer... hurry !

[phreakv6]

I'd been granted four patents. This was all the more surprising because I'd only applied for three...""

Oooooh ! dint u know ? they have an offer on those lil fellas now.
buy three
get one free
hurry.. offer open till stocks(no pun intended) last !

Stupid, Stupid, Stupid

[gowen]

If software were really no different from physical systems, 99% of software patents would be invalid because they consist solely of obvious (indeed, pre-existing) inventions with the words "using a computer".

How is the one-click patent not invalidated by the prior art of millions of human shopping experiences in which a customer says "One of those please", or a vending machine in which every item has its own button? Nobody would allow a patent on a type of vending machine based on how many times you have to push a button.

And if a one-push vending machine would not be patentable, why is a one-push webpage?

Re:Stupid, Stupid, Stupid

[TubeSteak]

Nobody would allow a patent on a type of vending machine based on how many times you have to push a button.

I wonder if I could get a patent on a vending machine that makes you use two, three or four button pushes to get your candy bar?

I call dibs! By the time I'm through, 'two' will be the new 'one' when it comes to pushing buttons.

Re:Stupid, Stupid, Stupid

[Anonymous Coward]

> By the time I'm through, 'two' will be the new 'one' when it comes to pushing buttons.

Have you never seen a vending machine where you have to push E-4 to get a Snickers?

Re:Stupid, Stupid, Stupid

[blueskies]

I've seen a snickers at E-3, but never at E-4....

Re:Stupid, Stupid, Stupid

[honkycat]

You seem to be agreeing with what Paul Graham said, despite your belief to the contrary. The problem is not with software patents, it's with obvious patents. Mr. Graham suggests that the office is particularly bad at recognizing obvious software patents and is perhaps better at recognizing obviousness in more traditional patent filings. I haven't done the research one way or the other, but this certainly sounds plausible.

Re:Stupid, Stupid, Stupid

[Jimb0v]

The office isn't really bad at recognizing obvious patents. The office is bad at presenting the documents to support those obviousness rejections.

It wasn't such a good idea

[babbling]

I get the impression that the "founding fathers of the USA" were pretty good blokes with the best of intentions. Certainly very different from the politicians in power in the US today.

I think their patent system was a mistake, though. Patents are a mistake simply because large companies have so much legal power compared to individuals that it is almost impossible for an individual to win a case against a large company. This was probably a difficult thing to imagine when patents were invented, since really big companies wouldn't have existed back then, and the legal system was probably also quite different. There was probably no such thing as "expensive lawyers".

Re:It wasn't such a good idea

[SlamMan]

<a href="http://en.wikipedia.org/wiki/British_East_I<nobr>n<wbr></wbr></nobr> dia_Company">British East India Company</a>

Re:It wasn't such a good idea

[Bogtha]

I think their patent system was a mistake, though. Patents are a mistake simply because large companies have so much legal power compared to individuals that it is almost impossible for an individual to win a case against a large company.

So what you are saying is that the combination of these two things is bad:

• Patents
• Large companies being able to wield an inordinate amount of legal power over individuals

I wouldn't be so quick to jump to the conclusion that it's the patent system that was the mistake.

Re:It wasn't such a good idea

[babbling]

I think it's a case of two mistakes being used together by unscrupulous people in such a way that it appears to be one big mistake. You're right that it is certainly a major problem that large companies can wield so much legal power that no individual has a chance of winning against them, but the patent system clearly has its own problems. Algorithms shouldn't be patentable, and as the article points out, patents actually can't mention the word "algorithm". Algorithm patents just try to make the patent sound like it is covering something mechanical in nature, and all of a sudden, due to different wording, the patent is valid.

There's more than one problem.

Re:It wasn't such a good idea

[Anonymous Coward]

A farmer wants to till his fields, but has to work around some rubble from an old house. After years of frustration, he decides to do something about it. He gets his friends together to go take a look at the house.

"See, I'd like to till my fields but there's a stone wall in the way," the farmer says.

His first friend, an engineer, studies the wall, looking at it from several angles, tapping on the wall in several places, then says "aha! Your problem is that there's a rock here!" pointing at a rock at the base of the wall.

His second friend, an architect, studies the wall, looking at it from several angles, climbs on top of the wall, and says "aha! Your problem is that there's a rock up here!" pointing at a rock at the top of the wall.

Is the problem the rock on top, the rock on the bottom, or that the farmer decided to buy farmland in a post apocalyptic wasteland full of rubble?

Re:It wasn't such a good idea

[atlasdropperofworlds]

I wouldn't be so quick to jump to the conclusion that it's the patent system that was the mistake.

No kidding. Imagine if new legislation was brought in to equalize legal disputes - something that madates equal representation of both the plaintiff and defedant. Perhaps something like when one side puts more wealth into their legal team, the other side gets a subsidized legal team with pretty much equal competance. I wonder how expensive this would end up being?

Re:It wasn't such a good idea

[rufty_tufty]

Off topic I know, but were they good blokes because they were fighting the system (the english) whereas those in power now are playing the role of the imperialist Engish?

Burn Karma! Burn!

Re:It wasn't such a good idea

[shimage]

But the patent system is screwed up. The folks that decide whether or not an application is granted or not have quotas. If you drop behind, they get on your ass and tell you to pick up the pace or get out. This seems very wrong, and actually explains a lot about how patents actually work here: getting a patent is easy, but validation of it (in addition to enforcement) is left to the judicial system (c.f. RIM).

Re:It wasn't such a good idea

[ThePilgrim]

I think this would only work if you got the side with the more expensive legal team to subsidise the smaller team.

Re:It wasn't such a good idea

[Znork]

"I wouldn't be so quick..."

The patent system is what creates the monopoly right of exclusion, which is the problem. Without the exclusive legal right, there would be nothing to apply the excessive legal power to.

Patents, had they actually been a system intended to stimulate and reward innovation, could have been constructed as an actual payout or tax writeoff, just like most other state-run incentive systems. But if you look at their history it's fairly apparent that encouraging innovation has always just been an excuse; monopoly control is the name of the game, free market be damned, from the time there was a monopoly on salt to today.

Re:It wasn't such a good idea

[aeoo]

There is more than one mistake there. Software and business process patents is one such mistake. Allowing people to create fictitious legal persons to shift responsibility for their actions from themselves into this fictitious person is another mistake. And there may be 10 other mistakes.

In other words, don't assume it's just one mistake and we have to find which one is it.

Re:It wasn't such a good idea

[superwiz]

Actually, big companies did exist. They were called governments. People were not as nationalistic and did not identify themselves with their "nationhood" as much as they did with their "god" (i.e. protestant vs. catholic, lutheran vs. calvinist, etc). Governments were even sophisticated enough corporations at the time that they borrowed money for speculative ventures, issued stocks, etc. Most of the American Colonies were stock territories. The "Founding Fatheres" rebeled because they didn't want to pay the proceeds of their work to the corporate owner (= the king) of their subventures (= colonies).

Re:It wasn't such a good idea

[Kirth]

I wouldn't be so quick to jump to the conclusion that it's the patent system that was the mistake.

When it was first established, there was a great debate, concerns were voiced, and in the end, they agreed to "try it out" -- when it turned out to be a bad idea, the monopolists of course had every incentive to not abolish it again.

I dare say, the founders of the patent-system would declare it a mistake now.

Software - Patents & Copyright

[erbmjw]

A very simple discussion point

Copryright is more applicable to software than Patents.

Feel free to discuss it, but I do not beleive that any person or group, has yet or will disprove the above statement.

I'm willing to engage in this discussion, furthermore I'm also willing to keep an open mind.

Re:Software - Patents & Copyright

[e4g4]

More importantly, software is the only example of a product that can be protected by both copyright and patents. That, in and of itself, should be enough to acknowledge that software is necessarily an exception to the rule.

I agree with Graham's assertion that the biggest (but not the only) problem with the patent system as it is now is patent trolls. So, perhaps, acknowledging the oddity of this double protection - we require the double protection - i.e. you may only be granted the patent on a given piece of software if you also can present a functional, copyrighted (by you) example of the software as well.

Re:Software - Patents & Copyright

[stubear]

Patents protect unique ideas, copyright protect the unique expression of an idea. Thus software can be protected by both but for different reasons. Photoshop has some unique software algortithms which perform image processing tasks. These are protected by patents because copyright doesn't protect ideas. Photoshop as a whole is granted copyright protecion because of its status as an expression of an idea but patents would not protect the software from being copied and distributed by unautoized parties. The two are not mutually exclusive entities and protect their own protions of software in ways thei either alone couldn't.

Re:Software - Patents & Copyright

[erbmjw]

Yes software can be protected by both patents and copyright ... but should software be protected by both? I would suggest that copyright is the 'in the best interest' form of protection for software.

Patents are now and have been granted to software {or software ideas} without them truly meeting the requirements. On the other hand software is easily protected under the rules of copyright without stifling innovation nor twisting the requirements of copyright into a knots.

Re:Software - Patents & Copyright

[randyflood]

Actually, software is not the only thing that is protected by both copyright and patents. You can now patent story lines. So, if you write a book, you can have a patent on the story and a copyright on the book.

No idea patents!

[Anonymous Coward]

[..] a great many patents on mechanical objects were really patents on the algorithms they embodied.

So there are also bogus patents on mechanics, not much of a surprise there. Paul however neglects to mention that, just like the fact that the destinction isn't an artificial one--patents should be granted for overcomming engineering problems. Patents shouldn't be granted to the guy who first thinks of a space elevator, but to the guy who can build one. It just so happens that with software this distinction does not exist--if you can properly describe an algorithm you have implemented it.

Proposed solution

[headlessplatter]

How about this for a proposed solution:
1- You can't patent anything until it's been published in a peer-reviewed journal.
2- The duration of the patent is proportional to the clout of the journal.
Only novel ideas will get published in a scientific journal with any clout. And journals without a big name will only get you a patent for a few days. This way the drug companies can patent the fruits of their multi-million dollar investments. But when someone tries to patent something stupid like one-click shopping, they'll be laughed out of all the journals. So who will evaluate the clout of a journal? College professors do that already in order to establish who gets tenure and promotions, etc. Plus this would keep the decisions out of the patent office, giving them an opportunity to offload their problem of being overwhelmed with applications.

Of course the real solution is to abolish software patents, but that's a rather tough sell when lots of rich companies are lobbying against it, so how about seeking something that might actually succeed?

Re:Proposed solution

[BVis]

I can tell that your heart is in the right place, but the system that you suggest is ripe for abuse IMHO. I do like the idea of a peer-reviewed journal evaluating the worthiness of an idea or invention as part of the patent process. The implementation, however, would most likely be problematic.

Currently IMHO, the function of scientific journals is to test the results of research as repeatable and/or valid. There doesn't seem to be a (direct) financial motive to review an article favorably. (Yes, being published benefits the author(s) in terms of status, tenure, professorships, career advancement, etc., but those benefits are realized by the author, not the peers reviewing his/her article.)

Suddenly you introduce patents into the mix, and any objectivity on the part of the peers reviewing is gravely threatened by the financial considerations of obtaining the patent. This would be especially dangerous when pharmaceutical patents are considered; the drug companies have DEEP DEEP pockets, and who's to say that a favorable peer review wouldn't result in a new Mercedes in the driveway (less likely, easier to trace as fraudulent), or a cushy do-nothing job at said drug company (difficult to prove, as hiring processes are confidential)?

Then there's the concept of the importance of a scientific journal. The importance of said journal is currently based upon the merits of its peer review process, and the accuracy of said analysis. It's one of the few merit-based comparison systems that still exist. Suddenly you've got Joe's Pharmaceutical Journal and Bait Shop, who just happens to consistently give the pharmaceutical companies' products favorable reviews. Add a multi-million dollar precisely targeted marketing campaign extolling the virtues and excellent reputation of said journal (and maybe a couple all-expenses-paid junkets for a few of the right people) and suddenly it has "clout", leading to longer patent terms for the drug companies that benefit from obtaining patents.

I have to disagree with you that this would be effective; the only thing IMHO this would accomplish is destroying the objectivity of peer reviewed scientific journals. There's just too much money at stake; someone will inevitably be lured accross the line by the cash involved.

Re:Proposed solution

[ceoyoyo]

Peer review (outside of journals) is a pretty good concept though. Right now the patent office doesn't HAVE any peer review (despite the insistence of my supervisor). Patents are reviewed by someone amounting to a layman. That might have been acceptable a couple of centuries ago but it doesn't hold up now.

Re:Proposed solution

[Znork]

"This way the drug companies can patent the fruits of their multi-million dollar investments."

Of course, the drug companies are actually wasting most of their money on administration and marketing, only between 15-20% actually goes to R&D. And if you take into account the efficiency of an organization largely protected from competition for a century, I'll betcha the pharmaceuticals would be able to do the same research they do today at about a fifth of the current R&D cost, if they had to compete.

So frankly, I dont see a reason that drug companies should be protected from the market either. As we can cut the drug costs by 80% by having the insurance companies and state insurances financing the R&D directly, I suggest we do just that and cut the pharms out of the loop, and let generics manufacture the unprotected drugs instead.

Re:Proposed solution

[mOdQuArK!]

The basic problem is that we need a better system for comparing the relative value of patents. I propose that we fall back on the old economist standby: hold an auction.

How 'bout this for a patent system:

* relatively small fixed number of valid patents at any time

* as patent "slots" become available (through expiration, or if "valid" patents are shot down through prior art or obviousness), then people/companies can bid to secure a patent slot for their patent.

A couple of benefits:

1) by keeping the total # of enforceable patents at a reasonable level, you make it a lot easier for people to tell whether they are violating any particular patent, plus most "innovators" won't have to worry about violating a bunch of crap patents for every little system that they engineer.

2) by forcing patent ideas to compete with each other for "value" (how much are the participants willing to pay to grab that patent slot?), you will force all of the participants to do proper "due diligence" on the value of their own patent before entering it into the patent-application process. (Patent isn't going to be worth much if it easily gets knocked down due to obviousness or prior art.)

Of course, a system like this would favor deep pockets, so I propose a 3rd aspect:

_Anyone_ can submit an idea for a patent into the patent bidding process, even if they might not be able to afford to bid on getting the patent themselves. If the bidders think that idea is a good one, then they can bid to get the patent rights for that idea - and if they get the patent for that idea, then the money that they (the bidders) paid to win the auction will go to the original idea submitter.

This should encourage a LOT of people to submit ideas to the patent bidding process, since if their idea gets selected it could potentially be the equivalent of winning the Powerball Jackpot. Society wins, since whoever wins will probably have the resources to start using that idea in products & services immediately

Re:Proposed solution

[mothas]

I like the idea, but in addition to peer reviewed publication, academic results have to be reproduced at other institutions. In the context of patents, this would mean giving the public a period to try to duplicate your result. Start the application process with a preliminary app that gets published. If someone else can produce something consistent with some part of your description, it was obvious and unpatentable. If you can reproduce your result, but no one else can, then you get the patent. This would penalize broad patents as well, which seems like a good thing.

Getting a patent aught to be a significant thing - it means that the public gives up their rights to the thing you've patented in order to get you to publish how you did it. Seems like they aught to be consulted first.

Re:Proposed solution

[kikibun]

You could try putting the descision up to a wiki like forum of people (i.e: thousands of professionals) who vote on the quality/innovativeness of the product. The higher the review the longer the patent. It could all be done over the internet or some sort of secure network. Only problem is people are not likely going to accept that level of change. This discussion is just to far in the realm of science finction to have any real meaning anyway. To fix the patent system... might as well have a full blown revolution.

He has many "ideas"

[ylikone]

He has published many semi-interesting essays in Hackers and Painters: Big Ideas from the Computer Age. I am not sure I fully agree with his ideas on patents. Most of his stuff is fairly pendantic and if you want a sampling, just go read his articles online.

More interesting than Paul Graham

[gowen]

Graham has engineers disease: he believes that being an accomplished engineer makes him qualified to speak authoritatively on art, law, science, film... He probably caught it from ESR.

Anyway, I heartily recommend you read this fine demolition of Graham's opinions on painting before giving this dilletante blowhard any of your copious free time.

Re:More interesting than Paul Graham

[Bogtha]

Graham has engineers disease: he believes that being an accomplished engineer makes him qualified to speak authoritatively on art, law, science, film...

Does Graham actually claim to be an authority? It seems to me that he doesn't claim to be an authority, but fanboys tend to treat him as such. That isn't really his fault. What's he supposed to do, take a vow of silence just because some kids have latched onto him?

Re:More interesting than Paul Graham

[Anonymous Coward]

You have Slashdot disease. You subscribe to groupthink so you believe you are right.

Re:More interesting than Paul Graham

[Anonymous Coward]

[ Disclaimer: I'm no apologist for Paul Graham. I think his essays are mostly puff pieces; however, I do agree with the general notion that a good programmer IS a lot like an artist. ]

Demolition? Not. That link was amusing though. The author's primary objection seems to be that hackers don't get laid as much as oil painters. He also seems to be pissed that Graham decided to single out painters instead of poets, composers and pastry chefs or auto mechanics. Those last two are obviously progressive jabs.

The overall tone is that the author of this rant against Graham is just jealous.

Re:More interesting than Paul Graham

[ABaumann]

You know, another guy once related art to computer science. I bet you'd think he's a "blowhard" too, so you probably don't want to take a look at his stuff.

Oh, by the way... His name is Donald Knuth.

Re:More interesting than Paul Graham

[shaitand]

hmm... a software developer posting his opinions on software patents. Doesn't seem like too much of a stretch to me. Or do you really suggest that matters of innovation be left in the hands of lawyers rather than developers and engineers?

Re:More interesting than Paul Graham

[ClamIAm]

Is this an article on art, law, science, and/or film? No. It's on software and business. Graham started a software business. I think he's qualified. Your comment is completely off-topic, and flamebait to boot.

Re:More interesting than Paul Graham

[xenocide2]

Well, did he preface his article with, "I'm no expert," or "Maybe I'm wrong, but this is what I think:" or "you don't have any reason to listen to me, but..."; or did he drop the fact that he advises several tech startups on patent and software problems, and claim to understand hackers and proceed to speak on their behalf?

Re:More interesting than Paul Graham

[Valafar]

You (and Maciej Ceglowski) are missing the point. The end product of painting and computer programming aren't the same, that's true. However, as any true artist knows, the art is about the process of creation, not mechanics or the end product.

I'd submit that Maciej is just an elitist snob who doesn't want his self admitted "sexy" job as a painter tainted by the uncoolness of writing software.

On second thought, he has gotten one piece of being a true artist: No one could possibly understand his work as a painter because it's unique and nothing like anything else; Anyone who claims to understand it is an ignorant fool.

Re:More interesting than Paul Graham

[msuzio]

Didn't Graham study art? If not academically, he certainly has studied it personally. I hear that being rich from being bought out by Yahoo gives you plenty of free time and wealth to pursue your more philosophical interests. Just because he's a smart engineer (and indeed, he is obviously an incredibly smart fellow -- read up on any of his software work and you'll be impressed, even if you don't worship s-expressions like Paul does) does not rule out him having informed and defensible opinions on other topics.

Or, you know, he could be completely wrong. I'm sure he is pretty sure he is not, because he has the great hacker quality of confidence and a bit of hubris to go with it, but I also don't think he presents his essays are authoritative universal truths. They are... essays. Opinions.

Personally, I find him a great read even when I don't agree with him. I mean, certainly on this topic you at least have to grant that he has a very informed opinion, having been quite successful in helming a startup to acquisition and in continuing to work in that arena.

Re:More interesting than Paul Graham

[nuzak]

Paul Graham is a software engineer and a businessman involved in startups, with several patents to his name, and this article is talking about the business of software patents with a particular emphasis on how they affect startups.

Yes, I liked Dabblers and Blowhards too, but in this case, Paul Graham actually might know what he's talking about. Maybe you should apply some critical thinking to your critical side itself, it's supposed to be kind of a recursive process yunno.

ESR would rant and probably mention his guns somewhere. He's the freakin Ted Nugent of engineering.

Re:More interesting than Paul Graham

[Escogido]

does he *have* to? or are you so gullible you need to be told each time that someone is speaking his view and not posing as a specialist somewhere?

the "general populace" may be so but that's not his fault. this is internet, after all..

Re:More interesting than Paul Graham

[xenocide2]

....

It's obvious he was writing using his background as a specialist in software as a basis for authority on the subject. It's pretty much the only way to write a successful persuasive argument. You don't prepend "this is just my opinion" when you intended to persuade someone to listen to you. You drop how lots of important people go to you for advice, and you always tell them "blah." Clearly, he is trying to project, as he probably should be, the image of someone authoritative.

Does he have to say something like "Look, brokedick, I'm a genius and you're a dumbass. I'm right and you're wrong, and I know more than you could ever possibily know about the subject" to write as an authority on the subject? Fuck no; that's just being an asshole. But as I attempted to put forth in my post above, there are ways of subtly including a basis for authority without being a dick about it. He doesn't have to say "I'm an authority on the subject" for his writing to claim he's an authority on the subject.

Re:More interesting than Paul Graham

[Anonymous Coward]

Knuth is a blowhard

Re:More interesting than Paul Graham

[Escogido]

frankly I fail to see what's wrong about it, especially since people do that all the time. this is blogosphere, after all, where everybody has the right to speak and be heard on every matter they deem important to -- and it's not even like he's pushing some personal agenda here or has real issues with IP. compare this to newspapers and TV where you hear an opinion and have little to no way to verify if who expressed one is really a specialist or not.

and not like he accomplishes much anyway. with his easy language and persuasive words, he still didn't deceive me and didn't deceive you into taking it for granted he's right. both of us (presumedly) still know who he is and know that this is only his opinion. he has some good points, but neither of us is like obliged or forced to agree. I for one don't feel he sufficiently proved much of what he illustrated.

but if someone falls in for his figures of speech, then again, what now? if someone cannot do themselves a favor of actually checking who is who, why then he would be at fault? especially if you consider that it happens all the time with much more important matters like politics and religion in mass media.

imagine if you write in your blog what you think of some activity you're not an expert in that you dislike. then someone else comes over and starts telling you that you have no right to sound like an authority and talk light that. if you'd think that's a breech in your right to express your ideas however you feel appropriate, why then would it be any different for paul graham?

Re:More interesting than Paul Graham

[HrothgarReborn]

Graham has engineers disease: he believes that being an accomplished engineer makes him qualified to speak authoritatively on art, law, science, film... He probably caught it from ESR.

And here I thought that being a voting citizen was all the authority required in order to voice your opinion on matters of law in the US. Let me introduce you to this little speech by Abe Lincoln ...

Patents-

[dteichman2]

"Are patents evil?"

EFF: "Yes."
Microsoft: "No."
Smart Person: "Depends..."

Re:Patents-

[hackstraw]

"Are patents evil?"

EFF: "Yes."
Microsoft: "No."
Smart Person: "Depends..."

I guess I'm not smart like the all of the EFF people.

If someone can demonstrate even a simple example where a patent benefitted someone, feel free to give that single example. In my experience with patents, there are only higher prices and fewer opportunities to obtain the patented item. Take something as simple as the patent that Symbol has on a bar scan reader with a finger operated trigger.

Bar codes are old technology, basically a commodity item. They started in the mid to late 70s by IBM. Quickly they have become standardized across almost all industries, at least at the consumer retail level. Mainstream adoption of barcodes took until the mid to late 80s, and now almost every retail outlet from a gas station, clothing store, grocery store, hardware store, just about everything uses bar codes.

If you want to have the convenience of a bar code reader that is more flexible for things like large items which cannot easily be lifted onto a stationary scanner, or if you are doing mobile bar code reading with a battery operated device like for inventory and warehouse use, the battery will go quickly go dead and inadverantly scan things the user does not want scanned, etc. Not to mention that laser light is not good for human eyes. So, its a requirement for the user to be able to turn the laser on and off. Well, to do that you have 2 choices.

1) Pay more for such a simple technology and buy it directly from Symbol, which most people do. I estimate that over 90% of all triggered bar code readers are sold by Symbol.

2) Pay more for such a simple technology and buy it from another company that must charge more for the item to cover the licensing of the patented technology from Symbol.

Symbol "wins" only in that they make more money by having a government sanctioned monopoly on the technology. Every user of bar code reader with a trigger and other companies that are in a similar business loses. The real cost for the electronics for such a device is less than $25. There are additional costs for the quality of the electronics and housing in terms of environmental extremes, g forces from being dropped, etc. The cheapest that these things sell for is about $200, and they can go up to well over $2k. Much of that cost is due to licensing of the completely obvious and necessary component for proper operation of the device, a finger operated trigger.

Re:Patents-

[Jimb0v]

Working as intended. What's the problem? If their patent is valid then they deserve the monopoly under the current system. After a certain duration passes, the license will be unnecessary and the cost will come down.

Re:Patents-

[dteichman2]

This post was about you.

Re:Patents-

[NickFortune]

Working as intended. What's the problem?

The problem is that the intended function of the patent mechanism may be neither helpful nor desirable.

If their patent is valid then they deserve the monopoly under the current system.

Umm... no. Let's try not to muddle the separate issues of what an entity may legally, with what that same entity may deserve. A law could be passed tomorrow giving me legal right to all your goods and assets now and in perpetuity - would that make me deserving of those resources>

After a certain duration passes, the license will be unnecessary and the cost will come down.

You're jumping the gun a little there. Stating that the patent will be unnecessary after "a certain duration" presupposes t hat the patent is neccessary now - which is the very point the GP was challenging. So before we can accept that argument, you need to explain that necessity.

In particular, I'm interested in the purpose for which you feel patents are necessary

Re:Patents-

[Jimb0v]

if you apply for a patent and the pto grants it you deserve the rights that come with that patent. You paid for it not only in filing and attorney fees, but also in disclosing your invention. You get 20 years from the filing date of your application to exploit that invention how you see fit.

I feel patents are necessary to promote the arts and sciences. Are there other ways to do so? Absolutely. Our government and most governments around the world thought and still do think patents help meet those goals. As much as everyone on slashdot touts the advantages of free disclosure and GNU, there are disadvantages.

Re:Patents-

[NickFortune]

if you apply for a patent and the pto grants it you deserve the rights that come with that patent.

If you apply for a patent and the PTO grants it you can claim a legal entitlement to the privileges that come with it. When you use language like "deserve" and "rights" it suggests a moral dimension to what is entirely a legal construct. I feel it's better to avoid such terms in this context - alltogether too many people are trying to conflate the moral and legal aspects as it is wthout slashdot joining the fray.

I feel patents are necessary to promote the arts and sciences. Are there other ways to do so?

A better question might perhaps be "are patents useful toward this end?" Certainly they are having a chilling effect on research in many areas of science, where people are increasingly reluctant to invest time and effort in original research when there is a high risk of having the fruits of their work hijacked by a wealthy corporation with a broadly worded patent thicket. Meanwhile, if you examine regimes that rejected the patent convention for a time, you tend to find that research sky-rocketed there. Not just as a result of them using work patented by others, either, but because they felt free to take that work and build on it.

Absolutely. Our government and most governments around the world thought and still do think patents help meet those goals.

I'm not sure the appeal to authority argument works very well when applied to so nebulous an entity as a government. You could argue that the set people who cnstituted the US government held such a view at one particuar point in time. Since then, simple inertia would probably be enough to keep the statue on the books. I don't really think we can infer anything much about the opinions of our legistators from this, and that's assuming they are a credible authority to begin with.

As much as everyone on slashdot touts the advantages of free disclosure and GNU, there are disadvantages.

Umm... what disadvantages specifically, disadvantages to whom? I mean I can see disadvantages to large corporations - specifically that they lose a number of weapons for surpressing competition and maintaining the status quo. I can't see any downside for the public as a whole however.

favicon

[gEvil (beta)]

They were assigned to Viaweb, and became Yahoo's when they bought us.

Well, that certainly explains the Yahoo! favicon for his page... : p

Only because of the length of time

[MikeRT]

If companies could only do a one time patent that lasted up to three years, it'd be non-issue. The current time span (what is it, 17-20 years at least?) is far beyond the useful lifespan of the technology.

I am a strong supporter of patents, but get really pissed off at the "pro-innovation" camp (who isn't pro-innovation?) that has the audacity to draw a parallel between software "innovation" and genuine innovation in other industries. There hasn't been a radical new technology except in niche markets for some time that justifies a patent for more than three years. Not only that, but the cost to make one drug, test it and get it widely used by its target audience is probably closing in on the cost of writing several commercial applications.

Re:Only because of the length of time

[gnuLNX]

"Not only that, but the cost to make one drug, test it and get it widely used by its target audience is probably closing in on the cost of writing several commercial applications."

LOL You are a complete fool.

He's confused

[iplayfast]

First he says...
Unfortunately, patent law is inconsistent on this point. Patent law in most countries says that algorithms aren't patentable. This rule is left over from a time when "algorithm" meant something like the Sieve of Eratosthenes.

and then he says...

In 1800, people could not see as readily as we can that a great many patents on mechanical objects were really patents on the algorithms they embodied.

and using this argument he says that if you don't like software patents you don't like patents in general.

I think there is a big difference between the method of a process, and the mechanical objects that implement them. I have no problem with people patenting mechanical objects (that are non-obvious). I do have a problem with people patenting methods that would work with those objects. If he thinks that algorithms implemented in mechanical objects is the same thing as algorithms, he isn't much of a lawyer.

Wow, how wrong

[Anonymous Coward]

I believe Paul Graham might have been hanging out with Dvorak's crack pipe or something. Software patents are not like patents on mechanical inventions at all. It's the difference between patenting knowledge, and the application of knowledge. Software is not the application of knowledge, but knowledge itself. Knowledge is special. Knowledge can be freely shared, and should be. If it is not, we all suffer. Those high priests who think they have special title to knowledge and do not deign to bless the uninitiated help no-one but themselves.

No intellectual endeavor procedes without building upon previous knowledge. This is particularly made manefest in the field of software, where there are untold constituent pieces of a system of any complexity. When we require the authors of such systems to seek out and license every brain fart anyone might have had that impinges on their work, progress becomes impossible.

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

--Bill Gates

If we are to have a true and honest culture, we must be aware of the self-appointed tyrant who puts a fence around a painting or art or music or literature and shouts 'This is my preserve. Think as I do or keep out.'

--Walt Disney

Re:Wow, how wrong

[langelgjm]

It's the difference between patenting knowledge, and the application of knowledge. Software is not the application of knowledge, but knowledge itself.

No. An implementation in software of some idea (such as adding numbers) is, on a base level, not theoretically different than an implementation in hardware. Whether you do it with levers and cogs, pipes of water, an abacus, or electrical impulses controlled by words is irrelevant. Software is an application of knowledge, just like any of these other things, it is not knowledge itself.

I'm not arguing for or against patents, just against this sort of thinking.

Re:Wow, how wrong

[Halo1]

No. An implementation in software of some idea (such as adding numbers) is, on a base level, not theoretically different than an implementation in hardware. Whether you do it with levers and cogs, pipes of water, an abacus, or electrical impulses controlled by words is irrelevant. Software is an application of knowledge, just like any of these other things, it is not knowledge itself.

It's a description of knowledge. Whether you write down a description of an algorithm in English or in C, on a floppy or in a book, doesn't matter. It just happens that if you restrict yourself to some particular syntax and grammar, it's easier to get a machine to parse what you've written down.

The "hardware implementation" in that case already happened by the person who created the microprocessor, since it was designed to be able to execute any kind of mathematics you throw at it.

If you implement it using cogs or on a chip, in theory the construction of this chip or with the cogs might be patentable, but the algorithm you've implemented shouldn't be. In case of software, it's not the implementation/description that's patented (that's covered by copyright), but the again the algorithm itself. Simply describing an algorithm in a particular way should not change its patentability.

Re:Wow, how wrong

[Anonymous Coward]

Quotes in bold of parent poster. Arguing what is not what SHOULD be, to point out the flaw that "code is just a description."

It's a description of knowledge.
Exactly, a description of -- but not knowledge itself. It's a method. Patents aren't on objects but on methods of producing objects. The description is one incarnation, one particular implementation of that knowledge.

Whether you write down a description of an algorithm in English
A copyrightable or patenable expression as well -- under the current system. Remeber, most patents (not in software) are on plans which are just English text, numbers and drawings.

or in C, on a floppy or in a book, doesn't matter.
Your right it doesn't. Or in hardware, or in cogs and levers (or drawings there of).

It just happens that if you restrict yourself to some particular syntax and grammar, it's easier to get a machine to parse what you've written down.

The "hardware implementation" in that case already happened by the person who created the microprocessor,
No. What he's saying is that I could compile your program with something that does VHDL or other hardware language and get a peice of paper or circuit itself that is a METHOD for creating the specified output. The result is just another expression of a peice of knowledge, and is (again) copyrightable and/or patentable under current law.

since it was designed to be able to execute any kind of mathematics you throw at it.

If you implement it using cogs or on a chip, in theory the construction of this chip or with the cogs might be patentable,
No, the design is... The METHOD is, under current law. The patent office gets drawings and/or legalese english -- rarely ever an actual physical item. Because current law is all about METHOD.

but the algorithm you've implemented shouldn't be.
But is.

In case of software, it's not the implementation/description that's patented (that's covered by copyright), but the again the algorithm itself. Simply describing an algorithm in a particular way should not change its patentability.
Under current law it doesn't... except that it does.

Patents on software aren't doing what they are supposed to. They don't make sense, but not for the reasons you described. I don't know if they make sense on other items or not.

Copyright, a completely seperate topic, I beleive to broken across the board, and needs to be fixed.

Re:Wow, how wrong

[langelgjm]

I like your way of thinking, and I think you're right. My initial reaction was to argue against the point that "software is knowledge", but a "description of knowledge" is much more accurate. Because that is exactly what it is - a way to write down a series of steps so that someone/something can perform them.

Then the question comes - does it make sense for someone to have exclusive rights to a series of actions? Does this constitute a patentable "process"?

Re:Wow, how wrong

[WindBourne]

Whether you do it with levers and cogs, pipes of water, an abacus, or electrical impulses controlled by words is irrelevant.

By your reasoning, then books can be patented. Words create electrical impulses inside of us. That is , they do work. Of course, it is more of a passive, rather than an active system. So are you suggesting that books, and therefore art, movies, etc. be patented?

Re:Wow, how wrong

[Halo1]

It's a description of knowledge.

Exactly, a description of -- but not knowledge itself. It's a method.

It's a description of a method, and a mathematical method at that. Mathematical methods are not (should not be) patentable, even if their description is machine-readable.

Patents aren't on objects but on methods of producing objects.

They can apply to both objects and methods (at least in Europe you have both process and product claims).

The description is one incarnation, one particular implementation of that knowledge.

You don't "implement knowledge in descriptions" (just like you don't implement a plot in a story), and you also cannot patent "knowledge". You patent "inventions". There are various steps to go from knowledge to an invention, but a description of knowledge is not a form of an invention.

After all, if the description was an implementation, then spreading the description (or even the patent itself!) would infringe the patent as well in case of product claims, and would otherwise probably constitute contributory infringement.

No. What he's saying is that I could compile your program with something that does VHDL or other hardware language and get a peice of paper or circuit itself that is a METHOD for creating the specified output. The result is just another expression of a peice of knowledge, and is (again) copyrightable and/or patentable under current law.

You're right that this is how the law is currently interpreted, but this discussion is not just about that (otherwise we can all just say "Software patents are allowed by the Supreme Court's case law in the US and by the European Patent Office's case law in Europe. Period.").

Re:Wow, how wrong

[Halo1]

Then the question comes - does it make sense for someone to have exclusive rights to a series of actions? Does this constitute a patentable "process"?

Processes/methods can be patentable, but that depends on the nature of the method. And then you get into things like Diamond vs Diehr, where the process was "curing rubber", but the only improvement was regularly measuring temperature of rubber while in the press to be able recalculate the time the rubber should still left in the press. The Supreme Court, in a 5 to 4 decision, decided it was not just some mathematics, but a patentable process improvement.

In case of computer programs capable of being run on a regular desktop computer, those steps are by definition just plain mathematics. And mathematics are not patentable subject matter.

There is always going to be a gray zone like the Diamond vs Diehr case (and in practice, most people won't care whether or not that is patentable, since it does not affect general purpose computing in any way), but unfortunately the logic followed in that and other cases has been extended ad absurdum, so that basically as soon as a computer executes something it's no longer considered to be pure mathematics, but a patentable process.

Re:Wow, how wrong

[Jimb0v]

Are people forgetting that patenting an idea or formula is NOT ALLOWED under current U.S. law. Isn't the key that there be a tangible, concrete, result provided by the software? Isn't that what that State Street case was all about? Anotherwards, just patenting a formula for the sake of patenting a formula would not be patentable. But patenting the formula as it is applied in an automobile car system in order to run the engine cooler would be.

Re:Wow, how wrong

[hesiod]

> It's a description of knowledge

A blueprint is the same thing, IMO. So when you patent a machine, do you patent an existing machine that you have already built, or the way in which it works (its blueprint)?

Re:Wow, how wrong

[Halo1]

A blueprint is the same thing, IMO

It's indeed also a description of knowledge. It's not a description of purely mathematical or logic knowledge though, unlike a computer program.

So when you patent a machine, do you patent an existing machine that you have already built, or the way in which it works (its blueprint)?

You usually patent both, one process and one product claim (at least in Europe). The former to sue people who use it, the latter to sue people who build and sell it.

Software - Patents or Copyright

[jbeaupre]

I've often thought it was more a question of patent OR copyright. Is a particular piece of software "science" or "art?" I'm sure someone could claim the two are not mutually exclusive, but I have this gut feeling they are. So, how about folks pick which protection applies. You want broad, but relatively short protection, or long and narrow.? One or the other but not both.

I disagree

[grahamsz]

If a vending machine identified you, and automatically debited the card it kept on file when you pressed the "Diet Pepsi" button then it certainly would be patentable.

However the non-trivial idea would be a vending machine that identified the user, something that's a very common feature on websites.

Re:I disagree

[gowen]

the non-trivial idea would be a vending machine that identified the user

Nonsense. A vending machine that worked like those Auto-Toll swipe cards -- read your ID remotely, and billed you accordingly -- would not be patentable. It's a trivial application of extant technology.

Similarly, using a pre-existing technology (Cookies) to identify a visitor to a website is a trivial, obvious application of extant technology, and should not be patentable.

Re:I disagree

[Waffle Iron]

A robo-bar in a hotel room is pretty much just that. You pull out a diet pepsi, and $8.00 + 15% gratutity + 23% county sports stadium tax automatically gets added to your bill.

Re:I disagree

[grahamsz]

I'm pretty sure you could get a patent on a vending machine that read Ez-Pass or RFID credit cards.

I feel, like you, that these are obvious applications of technology however the patent office seems to disagree. My point was really that this does happen in both the real world and the software world. It's just that given the rate of progess in computer software it's easier to file massive numbers of obvious patents.

Re:I disagree

[ClamIAm]

Have you ever worked in a business? Companies have contracts with each other where one calls the other to order something and the account is debited. Places like bars and gas stations have "house accounts" and other ways of keeping records for customers.

Re:I disagree

[AlterTick]

If a vending machine identified you, and automatically debited the card it kept on file when you pressed the "Diet Pepsi" button then it certainly would be patentable. However the non-trivial idea would be a vending machine that identified the user, something that's a very common feature on websites.

I think a more appropriate analogy would be a bar where you run a tab. You sit down, say "beer please", and the bartender, who knows you, brings you a beer of your usual fancy. A patent on this that parallels "one-click" would require all other bars to make you ask for your beer at least twice before you get it. Patently absurd.

Re:I disagree

[ceoyoyo]

I think a big part of the problem is combination. A web page to sell things isn't novel. A web site to identify the user isn't novel. Pushing one button to buy something isn't novel. The combination of these three things isn't non-obvious.

But when you put them together, if you forget that the inventor had the three components to work with, the result might be considered non-obvious.

Look, a clueless hacker!

[Anonymous Coward]

Frankly, it surprises me how small a role patents play in the software business.

"I've never heard of croslicensing cart^Wagreements, but I'll write about software patents anyway."

patents dont protect enough

[Anonymous Coward]

Inventors constantly get ripped off. Patent lawyers are the last chance for the inventor to earn some $$$ from their hard work. You see, the inventor sells their patent so they can earn something.
The patent system should be corrected to protect the little guy. That is, the "real" inventor should have rights when they sell it for less than 10% of the settlement price that the rich lawyers make. For example, I don't think the true RIM patent holder got 60M for their work, BUT THEY SHOULD.
The LITTLE guy invents, all others RIP US OFF!!!

Mod article troll!

[Spy der Mann]

In a recent interview, Steve Ballmer coyly left open the possibility of attacking Linux on patent grounds. But I doubt Microsoft would ever be so stupid. They'd face the mother of all boycotts. And not just from the technical community in general; a lot of their own people would rebel.


Yes, but if they win, they'd kill Linux. And how can you boycott the only LEGAL operating system in the market? That'd be as ridiculous as boycotting gas stations for one day.

Frankly, I feel insulted that he refers this matter (Microsoft using patents vs. Linux) as "hacker opinion". We're talking about a friggin' monopoly here. The fact that those opposing Microsoft turn to be hackers is because Microsoft has FORCED them to be. By not releasing their specs, etc. Would we have OpenOffice compatibility with the Word binary format if it wasn't for the hackers? Would we have SAMBA?

Make no mistake, Mr. Graham. If Microsoft sees a gain in using patents against Linux (and I think they do, they've been backing up SCO all this time), they WILL. And with our screwed-up patent system, we could as well end up with a legalized tyranny. And this goes about EVERY software company who feels threatened by the Open Source movement. If Microsoft had patented a method for using web servers, we wouldn't have Apache. If they had patented a method for using XML in web browsing, we wouldn't have AJAX (unless we used IE, of course). Who says Adobe won't patent a software method for image manipulation, or that McAffee won't patent one about virus scanning?

Patents ARE Evil. They grant ABSOLUTE control over the industry to the highest bidder.

And the problem we're having right now is shortsighted people like you, who see patents as a "secondary problem", and those fighting monopolies and promoting democracy as "hackers". Sheesh! what's next? calling the founding fathers "terrorists"?

Re:Mod article troll!

[Eli Gottlieb]

You do realize he uses ESR's definition of "hacker", right?

Re:Mod article troll!

[Anonymous Coward]

"Sheesh! what's next? calling the founding fathers "terrorists"? "

Umm, they were. They were vindictive rebels and torturers. Their main aim was to throw off the shackles of civilised life so that they could indulge in a little genocide.

Of all the World's countries, only the Americans and French are taught differently, but, hey, what do Americans know of history?

Re:Mod article troll!

[qwijibo]

Microsoft can't kill Linux. They might be able to prevent companies like RedHat from selling Linux. However, those companies have it in their best interests to fight that with everything they have. Even if Linux could not be sold anymore, it's not going to get it removed from every server or desktop running it.

The Linux community doesn't exist to ensure the financial success of each member. Companies exist to make money. Most Linux fan(atic)s spend money on their Linux habit. Free OS's exist because enough people don't like commercial OS's. People who are willing to put their own time into something to get nothing in return, except the ability to benefit from a community of like minded individuals, are not likely to accept a decree that says their community must disband because some corporation is offended.

Killing Linux doesn't make everyone a Microsoft slave either. There are a lot of other OS's out there. Even in the ridiculous fantasy world where Linux was wiped off the entire planet, the BSD's are still there for free. Anyone who needs big company support can always move to Solaris x86.

Patents are rules around ideas. People have the ability to violate those rules when they don't like them. There may be consequences, but it's pretty hard to go after a large group of unrelated individuals and organizations. A class action lawsuit can be brought against a company who has many victims. A company can't sue "the world" into submission as easily. It would take millions of individual cases to do that, many of which would be in places that don't care about the US patent system.

Re:Mod article troll!

[Spy der Mann]

Umm, they were. They were vindictive rebels and torturers.

Yes, but my point was that most of the time the Law supports the powerful, then the people who fight them become criminals ipso-facto. This applies to the European (British, Spanish, French, etc.) colonies equally, where the insurgents were labelled as "traitors" and executed if they lost the war.

Re:Mod article troll!

[Anonymous Coward]

George Washington commited genocide, eh?

What do we (Americans) know about history? We know we fucking won, that's what. ;)

Re:Mod article troll!

[hunterkll]

The founding fathers, terrorists?

I might not be able to answer that, but let me just refer you to my british friend here...

Re:Mod article troll!

[n8k99]

And the problem we're having right now is shortsighted people like you, who see patents as a "secondary problem", and those fighting monopolies and promoting democracy as "hackers". Sheesh! what's next? calling the founding fathers "terrorists"?

This may be an example of the formation of words by an organ other than the mouth that was referred to in the article.

That whole Boston Tea Party was no small demonstration of civil disobediance, it was a widespread destructive act. The tactics of guerilla warfare along the frontier and not to mention the manifesto signed by a bunch of audacious hooligans, certainly George the Third must have felt he was dealing with terrorists.

/. riff

[Rob T Firefly]

Slashdot has an icon that expresses the problem vividly: a knife and fork with the words "patent pending" superimposed.

The scary thing is, this is the only icon they have for patent stories. Slashdot readers now take it for granted that a story about a patent will be about a bogus patent. That's how bad the problem has become.

No, that's how the whole "news" thing works. If we were to have a posting every time a benign patent got assigned, our scroll wheels would wear away.

And speaking of things wearing away, has anyone patented a cranial skin graft? I now lack skin on my forehead from all the *facepalm*-ing this article inspired.

Paul Graham

[thrillseeker]

makes the statement in his article: "One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general."

He couldn't be more wrong.

Software is instructions to hardware. Instructions should not be patentable. Hardware should be patentable - though there may not be a business case to make it worthwhile.

The otehr day I had to give directions to a picnic to a group of soccer players. There's really only one reasonable way to get from where they were to where they'd be going. What if someone had patented the description of how to get from Point A to Point B, that is how to get some hardware from one state to another? Does anyone think it logical that I would have to pay a royalty for telling this bunch of 13-yr olds (well, their parents) directions to get to their picnic? No? Then why are a set of directions to a collection of hardware patentable?

The directions could have included a toll road - or an alternative existed to take a more crowded road instead. Here is a pay-for-the-patented-hardware concept that makes sense. Using the toll road costs money but saves time. Using the public road is cheaper in money, but costs traffic congestion. But either way, the directions to use either road are free for any to use. And for what it's worth - the public road has many services along it that make money. The toll road, built privately by private financing, saves a few minutes. Of course, in this case, the private financiers have taken a bath. They envisioned charging a bunch for the access rights to their frontage property to service providers - but few people use their overpriced path. A better business case could be made that the toll road owners should remove the tolls and collect a royalty from the service providers that would then invest in locating on their frontage road, but hey I'm not an investor in that endeavor so who'd listen to me.

There used to be services (maybe still are) before mapquest and friends that provided directions for trip planning - you paid $10 to AAA and they told you the "best" way to get from point A to point B. No one would have thought of patenting those directions, and you were not paying for a royalty for their use - your payment was for the work someone did (at sometime) to figure out a route - but you're free to look at a map and make some phone calls to the various state traffic agencies to find construction delay zones, etc. and work out your own route.

Say you planned, some years ago, to drive from Chicago to Los Angeles. Say you glanced at a map of the time and decided to "get on Route 66 headed west and stay on it till you see the ocean." Besides a trip with about 1000 burger joints, you now have some directions. Now say you asked your friend his idea of a good route for the trip, and he'd recently done that trip by contacting AAA, giving 'em $10 and they worked out a trip plan for him based on some criteria, and he got back: "get on Route 66 headed west and stay on it till you see the ocean." Do you owe $10 to AAA for those directions? What if they (like software) were patented?

Software patents are a bad idea. They impede progress. They tell (possibly justifiably patentable) hardware how to get from condition A to condition B. If those same directions would work on someone else's nonpatented hardware, then they should be free to be used.

Re:Paul Graham

[Ahnteis]

So I can steal your forumla ... err algortithm for creating a new medicine or a new machine, and you're fine with that as long as I don't steal your actual machine?

Re:Paul Graham

[vocaro]

Software is instructions to hardware. Instructions should not be patentable. Hardware should be patentable - though there may not be a business case to make it worthwhile.

But software is only a list of instructions when it exists in RAM. It is possible to translate any software algorithm into a physical hardware implementation. For instance, I could develop an ASIC that implements, say, a sort routine entirely in hardware. If, as you say, such a chip is patentable, then the software version of that sort routine should also be patentable. And that is the point Graham is making: A software patent is not a patent on a specific list of instructions; it's a patent on an algorithm, and algorithms can be implemented either in software or in hardware. Therefore, software patents should also be patentable.

The otehr day I had to give directions to a picnic to a group of soccer players. There's really only one reasonable way to get from where they were to where they'd be going. What if someone had patented the description of how to get from Point A to Point B, that is how to get some hardware from one state to another? Does anyone think it logical that I would have to pay a royalty for telling this bunch of 13-yr olds (well, their parents) directions to get to their picnic? No? Then why are a set of directions to a collection of hardware patentable?

This is a straw man argument. You're talking about a trivial, obvious algorithm for which "prior art" already exists. A correct analogy would involve a new, non-obvious algorithm on something that's never been done before. You're going overboard in suggesting that algorithms implemented in software (patentable ones, at least) are just as simple and obvious as directions on how to get to a picnic.

software parents ARE different....

[Anonymous Coward]

Paul talks about software patents being no different than hardware patents. This is clearly false. The difference, my friend, has to do with knowledge. That is, a hardware patent on what your called "Pullies lever and gears" expires and people are allowed ot build the same thing. But even before that they can pop open the box and SEE how the pullies lever and gears are put together. Software on the otherhand has no transparency at all, rather for software a person may never know how something was built ebcause the patent covers the idea, not the source code. And even after the patent expires the company would not be required to allow people to see their source code so the patented (now out of patent) software cans till not trully be reprduced.

If you look at long term effects then wouldnt it be likely for software that may be cutting edge to be lost, if say a company goes under and there is no copy of the code left for later.. and the world is left with lsot knowledge.

Re:software parents ARE different....

[Anonymous Coward]

Software on the otherhand has no transparency at all, rather for software a person may never know how something was built ebcause the patent covers the idea, not the source code. And even after the patent expires the company would not be required to allow people to see their source code so the patented (now out of patent) software cans till not trully be reprduced.

For a patent to be issued, it must fully describe the implementation details of the thing being patented, to the point that someone else "with skill in the art" could implement the same idea in their own software, via licensing that patent. This is the whole point.

If there were no software patents, any ideas implemented in closed source software (that were not easily seen) WOULD be lost, whereas with the patent system, they are documented and are not lost.

This does not speak to whether or not software patents are good or evil on the whole, but they do seem to have the opposite effect from what you describe.

The downside of software patents is not the lack of transparency, it's how the patents are used. If they are used in an anti-competitive and litigious manner, this discourages innovation. If, on the other hand, the patent describes something truly unique and non-obvious, shouldn't it be possible to license that technology? If it weren't for the patent system, there would be no such licensing, or even sharing of these ideas at all.

This is all a bit hard for the OSS crowd to understand, because the only "news" in the patent world happens when someone gets overly litigious. OSS also has easier and more efficient ways to share ideas; if you don't care about making money on them, you can give them away! Honestly I prefer the OSS approach, but the patent system isn't completely evil, unless business itself is also evil.

Re:software parents ARE different....

[Anonymous Coward]

A person of ordinary skill in the art should be able to create the invention from the disclosure. If they can't then thats an invalid patent. No requirement exists, in hardware or software, expired or unexpired that forces an example of the actual implementation into the the public realm. The patent disclosure is all that is required.

All well for an US company

[hopopee]

Yeah, this strategy might work for an US startup. But what about startups from other countries where software patenting has not yet evolved to the stage of cold war? Let's say they're doing great in their own country or even internationally. The next step? Of course they want to expand to US. And what has happened? Some US big companies might have already copied their ideas and patented them before this is happening. And there's always the patent trolls too.

From this point of view I'd say the patent system is working well in keeping away the smaller foreign competetion. Only bigger firms with the capital and strategy/vision of patenting obivious things in US has a fighting chance of surviving the system when dipping their feet into the US market.

Or am I understanding the situation wrong? I sure hope so.

Errata

[Spy der Mann]

in the last 2 paragraphs of my reply, i said "patents", i should have said "software patents".

(There ya go - for the record, yadda yadda)

I'm going to patent ...

[Anonymous Coward]

... his painting "algorithm" and sue the arro-gnat twat out of existence.

Breath of fresh air

[bsandersen]

My first reaction to the (lengthy) article was simply, "it is a breath of fresh air to read something thoughtful and insightful on software patents." As part of full disclosure here, I should mention that I have one (6,865,655) and participated in the arcane and sometime frustrating process. That said, the author's point that "fixing" the system might not be the right thing to do, either gave me pause. He might have a point.

After participating in several start-ups, I can also attest that the number of patents held directly affects your valuation. The author alludes to this, "A patent seems to change the balance. It gives the acquirer an excuse to admit they couldn't copy what you're doing. It may also help them to grasp what's special about your technology." Right or wrong, it is one of the external measurements made by business today of a start-up's worth.

Software is the most complicated thing man has ever created. It isn't surprising that the Patent Office struggles. The question is, as software professionals, will we choose to help or just stand by like "art critics"? Software engineers usually see a bad system and want to immediately "chuck it", re-write it, and go again. We can't do that here. We need to do the thing we all hate most: on-going maintenance. We could help if we engage and participate. Perhaps more thoughtful discourse like this will help us get started. My 2-cents.

Re:Breath of fresh air

[Halo1]

Software is the most complicated thing man has ever created. It isn't surprising that the Patent Office struggles.

Not so much the patent office, but the software authors. Exactly because software is so complex, a single product can easily violate hundreds of patents. There is a point where the overhead of license negotiations, aborted product launches and lawsuits completely erases any potential benefits the patent system could have in a particular field.

Re:Who's the blowhard now?

[Anonymous Coward]

Graham has engineers disease: he believes that being an accomplished engineer makes him qualified to speak authoritatively on art, law, science, film... He probably caught it from ESR.

Anyway, I heartily recommend you read this fine demolition [idlewords.com] of Graham's opinions on painting [paulgraham.com] before giving this dilletante blowhard any of your copious free time.

I heartily recommend you read Paul Grahams bio:

"He has an AB from Cornell and a PhD in Computer Science from Harvard, and studied painting at RISD and the Accademia di Belle Arti in Florence."
http://www.paulgraham.com/bio.html

MOD PARENT UP

[Anonymous Coward]

Indeed.

Another problem with patents on algorithms is that patents are only supposed to apply to inventions - not discoveries. If you come up with a novel way to produce steel, for example (one that's more effective or yields a higher quality steel than the current ones), that's an invention, but if you notice that factoring a (large) number into primes is a comparatively hard thing to do, then you've made a discovery. I think this is something else that's wrong with the patent system today; in addition to obvious problems like the fact that obvious things get patented, and the fact that software (both the market and the technology) changes too fast to justify 20-year state-granted monopolies (which is what patents are), there's also the problems that facts are being patented left and right today.

For more information, take a look at Michael Crichton's "This Essay Breaks The Law", for example (I think this was posted on Slashdot a while ago, but I may also have gotten it from elsewhere - I don't recall).

That being said, Paul also writes about how patents are used for defensive purposes, and how he doesn't see anything wrong with that. I think he's missing the point there - the *only* purpose that patents have is to foster innovation, so if a company has to patent stuff just to be able to defend itself and to be able to exist in an uneasy truce with other companies, then that's a symptom showing that the system is fundamentally broken. As he says - you probably can't even tie your shoes without violating a patent.

I agree with Paul (and also with the parent poster) when he says that not all patents are evil, but I don't like his "all or nothing" approach (which essentially seems to boil down to "if you're against any type of patent, you're against patents in general") - that's essentially a strawman. The essay is an interesting read overall, but I would've expected something better than that from Paul.

Ah well.

If you're against software patents...

[91degrees]

I'm against software patents. Copyright provides more than adequate protection for software.

I'm in favour of hardware patents. Hardware does not get copyrighted.

Why is this moreon telling us what our views are without even understanding them in the first place?

Re:If you're against software patents...

[Ekarderif]

Why is this moreon telling us what our views are without even understanding them in the first place?

I was going to say something useful here, but I guess your words are good enough.

Re:If you're against software patents...

[msuzio]

I believe he gets to say this because he can actually spell the word "moron".

Re:If you're against software patents...

[convolvatron]

speeling aside, just small point.

hardware has a far more robust copyright and trade secret infrastructure than software. many of the chips you buy include the cost of all of the licenced IP that were used to construct them.

Re:If you're against software patents...

[91degrees]

I can spell, moron. I just can't type, moron.

Best insight is in the footnotes

[mutterc]

[8] If big companies don't want to wait for the government to take action, there is a way to fight back [against patent trolls] themselves. For a long time I thought there wasn't, because there was nothing to grab onto. But there is one resource patent trolls need: lawyers. Big technology companies between them generate a lot of legal business. If they agreed among themselves never to do business with any firm employing anyone who had worked for a patent troll, either as an employee or as outside counsel, they could probably starve the trolls of the lawyers they need.

Forward that to management, Microsoft/IBM ./ers!

Only legal OS?

[Nursie]

I suppose there is a danger of that, but MS would have to take out Apple first...

Re:Only legal OS?

[UtucXul]

And they would need to take out Sun as well. Not a big player for the pc market, but take out all the other free Unix-likes (since I assume the BSDs would get hit right after GNU/Linux) and that could change a lot.

His analogy of the USPTO as a loose woman...

[ameline]

It's a very good article -- and while I've not yet finished reading it, I loved this quote;

  "...the USPTO in effect slept with Amazon on the first date."

As a side note, if any USPTO examiners who are assigned to one of the several applications I have pending are reading this; I will still respect you in the morning -- no really, I will. :-)

Re:His analogy of the USPTO as a loose woman...

[cluke]

OK, why don't you slip into something more comfortable, Bob's on his way round now.

had to sign over a few

[goldfita]

I had to sign away all my rights to a few patents for a startup I worked for. I sometimes wonder what those patents actually mean since the design of the site was changing every month.

Re:Who's the blowhard now?

[gowen]

studied painting at RISD and the Accademia di Belle Arti in Florence.

And I studied French.
Doesn't make me an expert on French Grammar.
Besides, you're making a defence by appeal to authority : he studied painting, therefore his opinions on painting are correct. It may have escaped your notice, but the man critiquing Graham made a series of logical points and observations about the multifarious (and, indeed, obvious) differences between programming and painting. Is your rebuttal to these really "but Graham studied painting for an undisclosed amount of time".

I mean, was he an undergrad or a postgrad at RISD?
Did he graduate?
Did he do a 3 year fine arts course or half a dozen evening classes?
Did RISD really teach him that painters need a detailed understanding of the chemistry of paint?

Does a 40-year-old computer programmer really find the time to fit into two extended periods of study at art school? Don't those missing six years look kind of weird on his resume?

"Studied at" covers a multitude of sins, and even if a an appeal to authority were justified, where's the evidence Graham qualifies as an authority?

Generalization

[Paul Rose]

"Is foo evil?"

Extremist A: "Yes."

Extremist B: "No."

Non-extremist: "Depends..."

Re:Generalization

[Halo1]

And by changing "foo" to "bombing innocent people for no reason", it's immediately clear that it's a BS argument if not substantiated.

Re:Generalization

[Anonymous Coward]

Hmm, I'd say "what is evil?"

Re:Generalization

[shaitand]

Both innocent, and no need to be removed from your statement. You have already prequalified it and that takes away the moderates grounds for "depends".

"Is bombing people evil?"

Extremist A: Yes
Extremist B: No
Moderate: Depends (on whether the people are innocent and there is a good reason)

However, the moderate view is still not always the correct one. Simply because one's view is decidedly on one side of the issue or the other does not mean one is incorrect.

Why your solution sucks

[Vlad2.0]

It puts too much power into the hands of whatever journal has the most clout. Under the right system of checks and balances such an idea might work for a relatively narrow range of patents. I'm sure there's plenty of things college professors aren't interested in reviewing.

No, all patents should be, at least at first, considered equal. Only after proper scrutiny and comparison to existant patents should a decision be made. From what I can tell, this is a rough idea of how the current system is supposed to work and the cause of the breakdown is that the current system is overburdened.

Saying abolishing software patents would solve the problem is stupid since not all (stupid) patents are on software. Not to mention I haven't been completely sold on the idea that *all* software patents are, somehow, inherently evil. If I implement an algorithim that's very efficient at, say, facial recognition, why shouldn't I be able to patent it and profit from my hard work? Don't like it? TFB. Invent a better one and beat me at my own game.

There is no doubt that patents are being misused and that the current system is shitty at best. But implemented and run properly the system can protect patent holders and drive innovation.

Actually, there is a difference: Copyright

[Jerf]

Actually, there is a good distinction you can draw between software patents and conventional patents that is strong enough that you can't automatically infer that being against software patents means you are against all patents: Software patents are the only things I know of where the patented objects are also covered under copyright law.

I go more into depth about this elsewhere, but the short answer is that we shouldn't be surprised that patents, balanced for one type of use, and copyrights, balanced for another, make no sense when both are covering the same thing, since they were never designed to do that.

Obviousness is a real problem too, of course, but that's more a practical problem, one that could be corrected by more aggressive denials by the PTO. This is a fundamental conflict.

Re:Actually, there is a difference: Copyright

[subreality]

Software patents are the only things I know of where the patented objects are also covered under copyright law.

They don't cover the same thing. Patents cover algorithms. Copyright covers the implementation of the algorithm.

An analogy would be a patent for a way to make a more efficient air conditioner, vs the copyrighted mechanical drawings of an air conditioner implementing that technique.

Re:Actually, there is a difference: Copyright

[Jerf]

I know the difference between patents and copyright.

The point is that they are both in play in software, and the combination of the two are very unbalanced. I am not aware of any other arena where you must worry both about violating patents and copyright, or, put another way, where a given object can enjoy both copyright and patent protection. It's not that copyright and patent offers the same protections, it's that they are functioning on the same object.

(I say "I am not aware of" because there may be a few, but even if there are I don't expect them to be as important as software.)

Re:Actually, there is a difference: Copyright

[subreality]

See my example of an improved air conditioner. The patent covers the operating principle, and the copyright covers the specific implementation. Someone creating a clone by directly copying the design would be in violation of both the copyright and patent.

In software, you don't have to "worry" about violating someone's copyright any more than you have to worry about it in creating an air conditioner. In both cases, unless you take someone's design and copy it, you're not violating the copyright.

In both cases, the patent covers the operating principle, even if you come up with an independant design.

Honestly, I'd be hard pressed to find an example where this *isn't* the case. Can you name one?

I agree that there are bad problems with software patents (many of which apply to all patents really), but this argument is unconvincing.

Re:Actually, there is a difference: Copyright

[Jerf]

Ah, there's your problem. You can't "copyright" an air conditioner. You can only copyright an expressive work, and an air conditioner is not an expressive work.

You can copyright the design documents, but copyright itself does not forbid anyone else from using those documents to then create their own identical air conditioner. Only patents can do that.

Certain pieces of machines can be expressive; auto companies can trademark the hood ornament, elements of the front, elements of the dashboard layout, and a few other things, but they can't trademark anything the customer won't see, and they can't trademark the entire design, lock, stock, and barrel.

In designing an air conditioner, it is possible to violate a patent, but you can't violate a copyright, no matter how hard you try.

In designing software, it is possible to violate both.

Remember, the "violation" is merely one side of the equation. The real issue is that you can get copyright protection and patent protection on the same piece of software. Both patents and copyrights are balances between social needs and individual needs, and software is the only thing I know that you can have both in force.

From the article ...

[Anonymous Coward]

There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not.

----

Graham misses the more pertinent point: nothing about an embodiment in a computer should make it patentable. If something is well known in the non-computer world, then jamming it into a computer should not immediately qualify for a patent. That, my friends, is where the system is broken.

As an IBM'er

[Nursie]

though a recent addition to big blue, I'll say this - whilst big blue tries (IMHO) to be friendly, that doesn't mean they'll rule out anything as far as business methods go. They do feel that what they patent is worth a patent because they have researched and developed it, and they also feel that as long as the current system is in place they have no choice but to participate. Hiring practices in the legal department though - I'm sure they already have their own ethical guidelines, how much attention they pay to the whims of engineers I don't know. *Disclaimer - I do NOT speak for IBM, this is just the impression I have after a very small anmopunt of experience with them.

Re:As an IBM'er

[nasch]

He didn't mean hiring practices, he meant deciding what law firms to do business with.

My Solution

[Anonymous Coward]

Reduce the length of the patents for software/business models to 2 years. That is more than adequate time to do something with it and doesn't lock things up. Patent trolls wouldn't have much time to work either.

And don't forget Unixware!

[Nursie]

Dmmit, I nearly choked as I said that. SCO are already trying to kill open source though...

Why software patents are different

[Beryllium Sphere(tm)]

Paul Graham says software patents are in the same category, ethically, as machine patents.

o Software can be sent to customers almost for free. Physical goods needed the protection of a 17-year monopoly because back in the old days progress was slow and it took years to build your factories. No patent monopoly, no payback. Software inventions can make money without patent protection.
o Software can use copyright protection.
o Patent examiners and juries can understand gears, wheels, and aircraft wings.
o Paul Graham says machine patents really cover the algorithms hard-coded into the arrangement of parts. No. Patents cover implementations. When the crankshaft was patented it was still legal to build other implementations of the algorithm "given linear motion l=sin(wt) set circular arc theta equal to l mod 2*pi*r and draw rotary power", as long as those implementations weren't crakshafts.
o Machines are crystallized human ingenuity and effort. Software patents are crystallized mathematics. The RSA patent, which made it illegal to do certain kinds of modular exponentiation, is different from anything in the mechanical world.

Re:Why software patents are different

[Anonymous Coward]

I really don't understand your first point. I have some issues with patent term as well, but software patents are not the only area of patent law to have this problem. Obvioulsy advancement in certain areas of art occurs at different rates, but it would be a total mess to have multiple terms for patents. Copyrights don't cover the same matter as patents. If soemone practices the claims of your invention but does not use the same implementation (code) they are probably not infringing the copyright. Patent examiners and juries can understand software in a lot of circumstances more easily than a lot of mechanical/chemical patented matter. Look at the one-click patent, how simple is that? You're telling me a jury would have a difficult time understanding that? Patent disclosures cover implementations, but the claims of a patent are almost never limited to the specific implementations described. Such a patent would be incredibly narrow. Machines are made up of parts. Software patents are made of parts too, just much smaller (ie transistors configured a particular way). The United States Courts had the balls to stand up and point out what is really novel isn't the bits on the transistors, but rather the process of configuring the bits to produce a concrete tangible result. Thats why a method of operating a machine is the exact same as a method of operating a computer. The thing is why should the method of operating a computer have to be tied to some physical piece of hardware? It has nothing to do with it. The novelty in those inventions is the steps you take to solve a problem, not the fact you used 3.2 million transistors to do it.

Maybe I'm confused

[Anonymous Coward]

I think there is a big difference between the method of a process, and the mechanical objects that implement them. I have no problem with people patenting mechanical objects (that are non-obvious). I do have a problem with people patenting methods that would work with those objects. If he thinks that algorithms implemented in mechanical objects is the same thing as algorithms, he isn't much of a lawyer.

So what is the difference?

The "method of a progress" I take to be an algorithm, i.e. instructions for completing a given task. You think this should NOT be patentable?

The "mechanical objects" I take to be, for example, the gears inside a machine: a specific configuration that accomplishes the algorithm. You think this should be patentable?

How is the first different from the second? The first describes the second. If you can only patent a specific implementation, then what is the point in patenting? Couldn't I read your implementation patent, and change just enough things that I no longer violate it?

I must be confused.

Re:Maybe I'm confused

[iplayfast]

Yes. I think that instructions (method of progress) should not be patentable. I also think that manuals, specs, storybooks and fairytales should not be patentable.

The gears inside a machine in a specific configuration which accoplishes teh algotithm should be patentable. (Not how it works, just this particular implementation of if).

The first only describles the method that the second uses. It does NOT describe the second. If you can read an implementation of a patent, and change just enough things that you no longer violate it, then there is no problem. If it is really easy to do this, then there probably wasn't any point in making the patent in the first place.

Of course it is

[grahamsz]

And it's patent pending....

http://tinyurl.com/rl2jn

Re:Of course it is

[Waffle Iron]

Well, that's a rather narrow patent covering the communications network and restocking of large groups of minibars, specifically using X10-like signals over the AC power supply lines. It doesn't cover the single-step purchase nature of minibars, which AFAIK have been around for more than 20 years, so any attempt to patent that would be just as silly as Amazon's patent.

Re:Of course it is

[grahamsz]

Would it be possible for another company to produce any automatically monitored minibar without infringing on any of the claims in that patent?

I doubt it, even though there is almost certainly prior art.

Re:Of course it is

[Waffle Iron]

All of the claims are dependent on claim 1 or claim 8, and both of those mention using signaling over AC power. It seems to me that one way to sidestep the patent would be to use dedicated signaling wiring like Etherenet or RS-232, and another would be to use DC power.

However, IMO this application is another example of how absurdly low the "obviousness" bar has been set for patents. If you asked a group of 10 freshmen EE students how they would cheaply implement communication between a minibar in a hotel and a central server, I'd bet that more than half of them would suggest using X10-style signalling. This technology has been around for decades; there's nothing new or innovative about using it. It shouldn't be patent-worthy just nobody else has happened to bolt this off-the-shelf stuff into a minibar yet.

Knowledge vs application

[archeopterix]

No. An implementation in software of some idea (such as adding numbers) is, on a base level, not theoretically different than an implementation in hardware. Whether you do it with levers and cogs, pipes of water, an abacus, or electrical impulses controlled by words is irrelevant. Software is an application of knowledge, just like any of these other things, it is not knowledge itself.

Ok. So (a*a)-(b*b)=(a+b)*(a-b). Knowledge or application?

Calculating (a+b)*(a-b) is better (in terms of rounding errors with fixed point arithmetic) than (a*a)-(b*b). Knowledge or application?

Suppose I was the first to notice this fact. Should I be granted a patent on calculating differences of squares this way? I have a gut feeling that this would be patenting math. And I don't see much difference between this and any other patent on algorithms. Maybe there are software patents that aren't patents on algorithms (for example GUI stuff), but again, the distinction is blurry.

Ok, this is still on the "gut feeling" level, but I think that with the software patents banning them is just simply the lesser evil than allowing them. I think that there is rather a continuum than a sharp distinction between "knowledge" and "application", and that software is close enough to "knowledge" to make it unpatentable.

To stretch it a bit: if you are for software patents, you are for patenting math.

Re:Knowledge vs application

[Weedlekin]

"To stretch it a bit: if you are for software patents, you are for patenting math."

And thus by extension anything that can be expressed mathematically, e.g. music.

Re:Who's the blowhard now?

[Anonymous Coward]

Honestly, my comment was fired from the hip. I spoke from ignorance. Maybe you are right about Paul Graham. Do you personally have the knowledge of art to know if the points made in "Dabblers and Blowhards" are correct? Or are relying on the authority of the author?

The software patent

[Anonymous Coward]

I was thinking about this the other day. Say we had something like the Star Trek replicator. Now I assume someone would have to either build the original object and "digitize" it into the replicator or program the object into the replicator. Who owns that program? Could it be patented or just copyrighted? What if the object was non-trival (say an engine or something)?

Since the object could very easily be replicated many times (like software) it seems like a hard situation to determine what is copyright and what should be a patent. Much like software now.

Slight wrong here.

[WindBourne]

Incorporations were not allowed. It was all about personal companies. Each company had a local reputation that could make or break it. So few companies really grew big. And the individuals were held responsible. Now, we have Incs, which is granted nearly all the rights as a citizen and the management is not held personally responsible for anything except the very worse infractions. Even then few get major punishments. Basically, it is our creating Incs and removing personal liability that is creating the monsters.

The patents were designed to give you a chance to develop the idea before somebody with money could. You were given 7 years which is more than long enough. Now, we have changed it to decades with multiple extensions. Likewise, we have moved method patents which are the nightmare. Our current congress and lawyers has figured out how to turn it around from helping the little guy to being a money maker. But the idea of a short time (a single decade?) for a concept (not method) patents makes good sense.

Re:Slight wrong here.

[dwandy]

But the idea of a short time (a single decade?) for a concept (not method) patents makes good sense.

From TFA:

There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not.

I agree with him: There is fundamentally no difference between a "concept" and a "method".
I think that patents are actually disruptive in all fields; it's just most easily visible in software because there are so many people playing, tinkering, coding. The shear volume and the ease with which joe-average can code means that it brings the dangers and downside of the patent system into your living room. If it were feasible for the average person to create chemicle compounds in their basement, this discussion would be about pharmaceutical companies and patents...so this is really about big businesses wanting a competitive advantage over their competition. They would innovate to gain sales (selling yesterday's innovation is how you go bankrupt), so thanks to patents they don't have to work nearly so hard: they have no competition.

Re:Slight wrong here.

[swv3752]

The problem is that software gets two IP protections. If software only had patents and no copyright the field would stagnate. If there was just copyrights but no Patents then things would be much the same but no Patent trolls.

Paul's idea that if you are against software patents you are against patents is just wrong. I as I am against unfair double protection.

Re:Slight wrong here.

[samkass]

The algorithm isn't the code. The code is copyrighted, the algorithm is patented. Code is not "double protected", it's just copyrighted. The algorithm it implements may have other patent protection, though.

Personally, I have a big problem with a system that has no software patents, and no protection for truly innovative ideas against usurpers who just sit around and re-implement the ideas and undercut the inventor. I have little respect or sympathy for the rights of an open source project whose only goal is to make a "free" version of some original work that someone put a lot of time, money, and effort into.

I think the biggest problem with software patents, actually, has been that the bar for something "non-obvious to one skilled in the art" has been set way too low. The number of clicks or variations on simple gestures is pretty obvious and shouldn't be patentable.

Re:Slight wrong here.

[bentcd]

Paul's idea that if you are against software patents you are against patents is just wrong.

His claim is too theoretical. The distinction between good fields for patents and bad fields for patents is a practical one: if it is practical for everyone to experiment and innovate within the field at low to medium cost, then patents will be harmful. Ideas and innovation will be so abundant within such a field that offering temporary monopoly as an incentive for people to document their inventions will be redundant. The inventions will come anyway.

Today, this may only be relevant for software, but that will change. Once we start getting affordable high-quality 3D printers (aka prototyping machines), the same will happen for simple mechanical devices. The day we get affordable printers that can print functional microcircuitry, it will happen for electronics.

Software patents need to go for this reason, and we need to realise that patents will need to go for other fields in the future, as these fields become easily accessible to the average citizen.

Contradiction

[StormReaver]

He makes two contradictions that completely unravel his entire premise that software patents are not evil.

First he says:

"There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not."

Then later, he says:

"Building physical things is expensive and dangerous. The space of possible choices is smaller; you tend to have to work as part of a larger group; and you're subject to a lot of regulations. You don't have any of that if you and a couple friends decide to create a new web-based application."

Hence the justification for patents on physical inventions but not on software.

He says:

"A lot of companies (Microsoft, for example) have been granted large numbers of preposterously over-broad patents, but they keep them mainly for defensive purposes."

Then he says:

"They win by locking competitors out of their sales channels."

This is the sole purpose of software patents, hence they are evil. The companies which began the patent land grab didn't do it for self defense (there was nothing to defend against). They did it to drive potential competitors out of the market. Software patents serve no other purpose.

Re:Contradiction

[feijai]

He makes two contradictions that completely unravel his entire premise that software patents are not evil.

First he says:

"There's nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not."

Then later, he says:

"Building physical things is expensive and dangerous. The space of possible choices is smaller; you tend to have to work as part of a larger group; and you're subject to a lot of regulations. You don't have any of that if you and a couple friends decide to create a new web-based application."

I fail to see where these are in contradiction. Graham is 100% correct, IMHO, that many mechanical patents are nothing more than the physical embodiment of control algorithms; but that early patent laws didn't see this. Now instead of banning such patents, or allowing algorithms in general, they instead attempt to allow software algorithms in through the side door by calling them non-algorithms.

Just because the two are conceptially the same doesn't mean that one isn't easier to construct than the other. You know, in theory there's no difference between theory and practice: but in practice there is a difference.

And again:

He says:

"A lot of companies (Microsoft, for example) have been granted large numbers of preposterously over-broad patents, but they keep them mainly for defensive purposes."

Then he says:

"They win by locking competitors out of their sales channels."

This isn't contradictory in the least: Microsoft use patents for defensive purposes because they have other ways of locking competitors out of their sales channels (by being big and bullying their distributors). What's not to understand here?

You may have some kind of point -- I'm not sure what it was -- but please don't call perfectly non-contradictory statements "contradictions". It just annoys the pig.

Fallacy

[Bruce Perens]

Paul Graham thinks that you won't be sued until you have money. But that's backwards. Suing people who have the money to defend themselves is much more risky than suing the little guy. That's why so many suits are against companies that don't have any choice but to settle, because they can't afford to continue the suit to a verdict. The worst software patent lawsuits are not brought to make money at all, but to restrain another party from doing business. A suit against Open Source developers would not seek to collect money, it would simply seek to shut them down.

And he thinks that Microsoft would be deterred by a boycott?

Bruce

Re:Fallacy

[The Snowman]

And he thinks that Microsoft would be deterred by a boycott?

I think overall he had some good ideas in his essay, but this point in particular gave me second thoughts. Boycotting Microsoft makes about as much sense as... I can't think of a witty comparison. It just doesn't make sense. Free software may have good alternatives, but boycotting a monopoly doesn't work. Get in your time machine and boycott AT&T back in their time. Good luck. I hope you like the postal service.

I think the best solution to this patent nonsense is first to state more clearly what is and what is not patentable. Don't rely on judicial review or years of "this is the way it's been done" crap. Next, implement a system like what we do with juries. Maintain a roster of people who are educated in a given field, and let them serve for a week approving patents. Much like jury duty this would be a civic responsibility, but would pay better. Give them a patent per day to research and give the stamp of approval or toss it. Finally, because this system would get backed up very quickly, change the system so patents are not valid when filed, but when approved. Inventors would have incentive to patent only the best ideas, to keep the system flowing smoothly.

Re:Fallacy

[Jobe_br]

Entirely. Furthermore, the argument of patents wrt innovation seems to ignore an important point. Without patents in software, a new feature (such as one-click) would be replicated, improved, or would spur new ideas, without fear of any recourse. Same would go for any other thing - I cannot think of anyone that would see one-click and think "hmmm, now HOW did they do that?!" - a detail that the patent would reveal. Software patents are being used to protect conceptual ideas (very tenuous ones, at that) that have no secret (hence trade secrets being useless). Nobody cares exactly how Amazon implemented one-click (unless I am mistaken, please correct me if you do). That's the difference I see with mechanical patents. Perhaps, if someone came up with a mechanism to cut diamonds that yielded less waste, then to replicate this, you couldn't avoid implementing the same mechanism. That is, unless you came up with something entirely different, that had the same effect (high quality cut, low waste). And as far as I understand patent law (IANAL), that would be O.K. Different mechanism, same end-effect, no problem. Not so for software. Different implementation, same end-effect (one-click ordering), and you're bound by the patent.

That's a problem and I think Paul overlooks this.

That said, Paul's post on this is an excellent essay on the topic from a number of different angles.

Re:Fallacy

[legirons]

Paul Graham seems to be approaching from the POV of a startup company which just wants to exist long enough to sell the company in 3 years or less, with the fallback option of hiring lawyers, paying licenses, or cross-licensing if necessary once they have the money and patents to do so.

Many of the people on slashdot are doing something very different, trying to create a piece of software which will last essentially forever, be free for anyone to use without restriction, and with little or no "legal maintenance"

i.e. if you put down your GPL project, you expect to be able to come back to it in 20 years and find it still legally usable - that exposes one of the big problems with patents, that they make it so easy to destroy useful work.

So the essay seems like one answer of very limited-scope, to the wrong question, for most of us here.

Re:Fallacy

[rufty_tufty]

"Boycotting Microsoft makes about as much sense as... I can't think of a witty comparison."

I agree the users can't boycott Microsoft, but I think the point that Engineers would start to leave is valid. The people I know who work for MS don't believe it is an evil company, a company with problems yes, but all large companies have that. If they did believe it had gone too far I don't believe they would stop any longer than the time it took to find a new job.

Re:Fallacy

[dwandy]

Without patents in software, a new feature (such as one-click) would be replicated, improved, or would spur new ideas, without fear of any recourse.

I believe this to be 100% correct. And I think it's not limited to software. Innovation is like a living organism: The shorter the generational gaps, the faster it mutates and evolves. Putting a 20yr hold on generations will only slow, not speed innovation.

Re:Fallacy

[Jobe_br]

Innovation is like a living organism: The shorter the generational gaps, the faster it mutates and evolves. Putting a 20yr hold on generations will only slow, not speed innovation.

Right, and (please correct me if I'm wrong), but the only way I see patents spurring innovation is if (a) developers were in the habit of following patent filings & reading through patent listings to develop new ideas and (b) they then used the knowledge and methods from the patents to develop something new (the innovation). Last I checked, not only does this not happen (reading through patent filings to get new ideas), but if it did, and ideas were based on that, that would be patently illegal, right? (pun intended)

IMO, the "non-obvious" rule should be differentiated from being "original". Being "original" should not provide grounds for gaining a patent. It should be used to gain a market advantage. If something is truly "non-obvious", then anyone should be able to see the end-result and not be able to duplicate it without seeing the code that's running behind the scenes.

Trade secrets are provided for being "first" to do something .. the assumption is that without your "secret", competitors will be behind you in duplicating what you've done. Just because software changes the rules, doesn't mean that patents should become more broad to compensate.

For me, it tends to boil down to this: figuring something out versus inventing something from scratch. Example: new video codec - someone figured out how to maintain the quality of video while reducing the bits needed to encode it. Excellent - that's great, and should probably be a trade secret and encapsulated in a proprietary product if you want to make money off it directly. If someone else comes across the same method, whether or not they've seen your product, great - someone else figured it out, too. Maybe they'll open source their system, maybe not.

Compare this to an internal combustion engine. Someone didn't just "figure it out" - that was invented/developed/etc. Once the base had been invented, I'd say that one-offs or incremental improvements probably don't deserve being patented. Inventing a jet engine versus a scramjet engine, though - yeah, that's probably significant enough. Ramjet versus scramjet, debateable.

Why? Well, when a ramjet was invented, it was obvious what the limitations were - it couldn't operate at supersonic speeds. With that obvious, it was logical to believe that someone would "figure out" what needs to be done to allow a ramjet to function at supersonic speeds. New invention? Probably. Patentable? Nah, not in my opinion.

Re:Fallacy

[Phleg]

Potentially, also, the patent would be kept secret until approved. This would have the nice side effect of, if a competitor starts producing a similar widget in the time between when you applied for the patent and received it, it should be tossed on the grounds of being obvious--since the competitor clearly came up with the idea on their own.

Re:Fallacy

[pojo]

I like your point, but I think there's a flaw. The Amazon one-click patent is the quintessential bad patent, and Paul picks out the reason why: it fails the non-obvious test. If you were to draw out your argument to a good patent, I don't think it would hold up.

Say, for example, Google has patents on their method of returning search engine results. Then Microsoft comes along, and separately (without looking at Google's code) builds a search engine that returns equally good results. Google would not be able to successfully sue Microsoft for that, because Microsoft built the same end result with different inner workings.

Now if the USPTO granted Google a patent on the basic idea of returning good search results, regardless of how they are calculated, that would be basically the same thing as the Amazon patent, and I agree that shouldn't be allowed.

Re:Fallacy

[Pseudonym]

For me, it tends to boil down to this: figuring something out versus inventing something from scratch.

You'd be wrong, because nothing is entirely invented from scratch. Basically, this is the "myth of the lone inventor" in another disguise.

All inventions are incremental. Indeed, all human progress happens on the fringes of what we already have. Many inventions were more or less independently invented by multiple people. The television, for example, was independently invented by at least three people that I can think of. Farnsworth usually gets the credit because he came up with the best design of the one piece (the magnetic deflection system; previous designs used mechanical deflection). IMO he deserved the patent, but he certainly did not invent anything "from scratch".

Re:Fallacy

[Jobe_br]

Google's a great example. Say, for example, Google patents serving up remote ads based on the content of the page (AdSense). Someone else could easily figure out how to do that. That should not be patentable, but I think AdSense is in fact patented. Agreed?

Re:Fallacy

[Jobe_br]

I agree, the myth of the lone inventor is just that, a myth. Everyone stands on their predecessors shoulders. There have been some notable exceptions, but by in large, this is correct. WRT your example of the TV, though - even though three people successfully invented the device at roughly the same time, that's OK. They didn't do it all the same way and the patent only covers one way of doing it (at least it should!). Whoever designed the best one should win the day (in the marketplace). If the other two, besides Farnsworth, had looked at the end product that Farnsworth invented (without dissecting it or looking at the patent application), would they have said "aha! that's the missing part, that's what we needed." I don't think so, but I could be wrong - it isn't exactly my area of expertise. There wouldn't have been a "figured it out" type of revelation there. The difference is conceptual, I think.

Re:Fallacy

[mdfst13]

"the only way I see patents spurring innovation is if (a) developers were in the habit of following patent filings & reading through patent listings to develop new ideas"

No. Pharmaceuticals are a good example here (although their patent protection has more in common with copyright than with other patents). Pharmaceuticals cost millions to develop. The biggest part of this cost is all the trials to verify safety. If anyone could just copy the drug after the trials, there would be no point. Companies would not bother to get drugs approved.

This is the primary point of patents (and copyrights). They reward the original inventor for taking the effort to come up with the invention in the first place.

A secondary effect is that patents require that the inventor expose the inner workings of the invention. However, note that copyright does not do this -- mainly because copyright protects things where there are no unexposed inner workings. The exposing is not necessary for the promotion of creativity; it's just an additional benefit of the system.

Re:Fallacy

[sjames]

I cannot think of anyone that would see one-click and think "hmmm, now HOW did they do that?!" - a detail that the patent would reveal.

Further, in the case where some patented software technique really IS non-obvious, the patent itself is unlikely to be helpful at all. Suppopsedly, a patent should allow a competant programmer to reproduce it but, in fact, the things the USPTO allows through are nearly incomprehensible. So in the case where secracy would actually slow others down, the patent isn't really helpful.

All things considered, I would prefer to let the big corps keep their secrets (and tangle their own feet with the internal secrecy Paul warns of) if they can (which I doubt considering how obvious most of them are) and skip the patent tarpit.

The problem with software patents...

[Xichekolas]

is the length of time granted. Twenty years may make sense for something that is a physical product and takes time to manufacture, market, sell, and support... but with software, the cash-cow timeline is much shorter. I think if you just granted software patents for 3-5 years, you'd see two things happen.

First, the potential payoff window is so small that it becomes not worth the lawyers' time/money to file frivolous lawsuits. Since a normal patent case seems to take years in court (NTP and RIM), by the time it was settled, the patent would be expiring anyway.

Second, you see a lot fewer patents getting filed in the first place, because the protections offered wouldn't always be worth it.

Personally, I think that if your innovation is novel enough to qualify for a patent in the first place, then it shouldn't be so obvious as to be easily duplicated by your competitors. Hence, you should always have a competitive advantage as long as your don't become complacent and get yourself overtaken. In either case, the end user still ends up with the best product.

Man, what an essay!

[multiOSfreak]

This guy mentions hockey, Shakespeare, the Industrial Revolution, Richard Stallman, the movie industry, and even the frickin Masons, all in one essay! He also manages to take a shot at the president.

Oh yeah, and he talks about software patents a little bit as well. :)

Oh the whole, I agree with Graham on most of his points, especially this bit:
...it's better, even from a purely selfish point of view, to be constrained by principles than by stupidity.

Background on Paul Graham?

[ZombieRoboNinja]

OK, who is this guy and why do all his blog entries show up as news posts on Slashdot?

I mean, he's a pretty good writer with some interesting ideas, but is that all it takes to make the front page? Or has this guy done something that should make his opinions particularly noteworthy to Slashdotters?

Reading TFA doesn't shed too much light. He makes some pretty silly generalizations, and he constructs his argument around some questionable premeses. ("One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general"; isn't it possible that software is a special case because there are fewer material barriers to entry for a private hacker than there are for a dude who invents a better mousetrap but doesn't own a mousetrap factory? "Whenever software meets government, bad things happen, because software changes fast and government changes slow"; what about the Massachusetts government trying to adopt OpenDocument well before the vast majority of private users, corporations, and other "faster" entities?)

So anyway, who is this guy?

Re:Background on Paul Graham?

[Rinkhals]

>So anyway, who is this guy?

Seems he makes a living out of advising start ups on patent issues.

I've had to advise most of the startups we've funded about them, and despite years of experience I'm still not always sure I'm giving the right advice.

Possible he may have a vested interest?

Re:Background on Paul Graham?

[Rocketman56]

See URL:http://en.wikipedia.org/Paul_Graham.. He's made a fair amount of money in the IT field.. Steve

The amazon patent dispute...

[danpsmith]

...might be a bad PR move for Amazon, but surely whether it leaves a "black mark" on the company or not, they continue, whereas they can practically kill the lesser site with litigation. Maybe now, now patents aren't leaving that big of a mark on innovation, but what happens when Ballmer actually does pull out his crappy bag of tricks on linux. The truth is I don't care why companies aren't suing upstarts, I care about the fact that the suit is possible, and in time may prove more profitable and offer quite an opportunity to stifle competition. The normal use case aside, it's like he says, "the principle of the matter", here. This is why government is in place, I don't give a shit why a company isn't suing someone for using a status bar, they shouldn't be able to in the first place, it's ridiculous.

hardware and software

[penguin-collective]

One thing I do feel pretty certain of is that if you're against software patents, you're against patents in general. Gradually our machines consist more and more of software.

Well, most people don't have a problem with understanding the difference between buying a physical object and buying software.

So, if you buy or sell a physical object, then patents should apply.
If you buy a physical object that contains patented algorithms, then patents should apply.
If you buy or sell software separately from hardware, then patents should not apply.

It's debatable whether a user of software should ever be considered infringing if he combines software and hardware himself, but he certainly should never be considered infringing when he combines general purpose hardware (for some definition of "general purpose") and software.

There are lots of reasons why people who oppose software patents but are in favor of hardware patents believe this to be a good thing. The point here is that if Graham doesn't even get this, he hasn't thought the issues through.

Oh wait...

[Anonymous Coward]

I though they meant Billy Graham...!

VALID software patents

[kirbyb]

Paul's article re-established a 'little' of the belief I once had in patents. I think the MAIN point is that 99.99999% of patents (software and not) are OBVIOUS and should not be granted.... Things like a single click, or double click..... progress bars... PLEASE! Obvious, obvious, obvious. If you analyze a problem, software or not, and have 'fair' familiarity with the subject, you'll come up with 'patientable' ideas 99% of the time.... I.e. ideas that the patent office will grant. The problem is that it would appear that there are no creative/knowledge people in the patent office... (yes, I have a patent, and yes, its mildly clever, but mostly obvious). Assemble in a room 10 knowledgable/successful people with at least 20 years per person average experience... and have THEM review the awarded patents... I bet 1 in 1000 awarded patents made it through.

I agree, "non obvious" is the problem

[jonathan_95060]

I am I ok with ETH-Zurich patenting the IDEA encryption algorithm because this algorithm IS truly non-obvious. You, me and Joe Q. Hacker are not going to infringe on this patent accidentally.

One click shopping or Apples patent on the "3 pane interface" for itunes are stupidly obvious. A person coding in a drunken fog should not be able to create an infringing program by accident (IDEA passes this test, one click and 3-panes does not).

The reason many folks (like me) jump on the anti-software patent bandwagon is a lack of confidence that anything short of abolishing software patents will be effective. Obvious patents benefit powerful corporations who can set their minions to the task of patenting belly button lint and other "innovations". With all the vested interest in bad patents it is easy to see why we are skeptical that meaningful reform (i.e. enforcement of the "non-obvious" clause) will occur. Of course if software patents cease to exist then the slippery slope of what is "non-obvious" disappears.

Mind you I don't think we will be successful in abolishing US software patents (not without a bloody "cultural revolution" a la Mao Tse Tung) but the disgust engendered by horribly bad patents naturally inspires an excessive reaction in the opposite direction.

BTW, if you think it is an accident that bad patents are issued left and right, think again. You won't find Microsoft, Oracle and Amazon spending millions of dollars lobbying Congress to properly fund the patent office. The patent office is underfunded because the people who get face time with our leaders like it that way.

Re:I agree, "non obvious" is the problem

[Rinkhals]

>BTW, if you think it is an accident that bad patents are issued left and right,
>think again. You won't find Microsoft, Oracle and Amazon spending millions of
>dollars lobbying Congress to properly fund the patent office. The patent office
>is underfunded because the people who get face time with our leaders like it
>that way.

Yes, and clearly they want the rest of the world similarly hamstrung.

Big technology firms, such as Philips, Nokia, Microsoft, Siemens, and telecoms firm Ericsson, continued to voice their support for the original bill.
BBC article on attempts to grant European Software Patents

Also see the comments made against the business week columnist's pro-software patents piece.

Re:I agree, "non obvious" is the problem

[Jimb0v]

I just don't see how it is relevent whether the patent is something which a drunk coder could stumble upon vs. something a person like you or I would never use.

I am in a vast minority, but I think software patents are good. I also think the Amazon one-click patent is good.

At the time the Amazon patent was prosecuted, do you have any idea what prior art was before the examiner? At what point exactly do you think it was obvious to have one-click shopping? The second the Internet was invented? When it was implemented? Before the telephone? Tell me. I want to know.

People use hindsight to say things are obvious way too often. In order for something to be obvious you have to have a reference which combines with the known art in the field in a way that is motivated by the ordinary way in which that reference would be applied, or in a nonordinary way which is suggested by that piece of art. Or alternative you might have two pieces of art, one of them has to have some motivation to combine them.

There was absolutely nothing like this in the Amazon prosecution history. On the Internet at the time of invention, all the sites I bought things from used the "shopping cart" method. Noone had a one-click buy feature. It was new and it was not obvious. Someone please explain why it was so obvious.

The "bar tab" art is the best prior art I have heard, but it does not render one-click obvious in my mind. Before the one-click patent no-one used the "bar tab" situation online. Everyone used the shopping cart method. They did this for many reasons, one of which was security. The "bar tab" art requires the person accepting your order know you. IN the online world at the time that wasn't the case. While cookies existed, noone had thought to implement them in this way. Anotherwards, while the individual pieces may have existed for the one-click invention, the motivation to combine those pieces did not.

Where do you draw the line

[grahamsz]

I'm not trying to argue that one-click was worthy of a patent, but it's hard to know what would be appropriate.

Would the first web browser have been eligible for a patent.. it combined a number of existing technologies into something that really was new and revolutionary.

What about tivo.. nothing new there but still a great product that they probably should be allowed to profit from.

Re:Where do you draw the line

[ceoyoyo]

I didn't say that a combination of existing technologies shouldn't be patentable. It seems, however, that the non-obvious test gets applied to the invention when it SHOULD get applied only to the novel part of the invention.

One click shouldn't be patentable because it's not a non-obvious combination of existing techniques. TIVO (assuming it's the first) probably is. The first web browser? Why? All it did was download pages written in HTML and display them. So what? The first web browser wasn't revolutionary at all. Now, the web itself is kind of a revolutionary idea, but it's success depended on it's NOT being patented. There are a lot of things that a patent will kill absolutely dead. Take a look at fractal compression for an example. It works very well, but it's patented so almost nobody uses it.

Re:Where do you draw the line

[nasch]

"allowed to profit from" == "allowed to patent"? Therefore "not allowed to patent" == "not allowed to profit from"? Without patents, there would be no profits? Or are you saying something else?

Re:Where do you draw the line

[grahamsz]

For certain industries you probably do need a patent to recoup your development costs. The drug industry certainly springs to mind.

I feel there may need to be a variation in patent length based on industry. 25 years is a lifetime in the high tech industry, but if patents were valid for say 4 years and only granted to non-obvious ideas then they could help the industry. As it happens right now, many technologies are obsolete before their patents are granted.

greatest quote ever

[Anonymous Coward]

"By granting such an over-broad patent, the USPTO in effect slept with Amazon on the first date. Was Amazon supposed to say no?"

You agree then?

[Ahnteis]

Seems like you are saying basically what the article said.

1) Patents are being granted too often. They should only be granted for non-obvious things.

2) The point of a patent is full disclosure in exchange for time-limited monopoly. (That would be source code or complete algorithm in the case of software.)

That seems very close to what the article said.

Judging on Current State

[Bob9113]

I like much of Paul Graham's work. I like a lot of this piece - lots of insight. There are a few pieces I disagree with that have already been touched on. One I would like to add is that I think he is judging the landscape a bit too early:

A company that sues competitors for patent infringement is like a a defender who has been beaten so thoroughly that he turns to plead with the referee.

That is the majority of what has happened in the past 10 years because the rampant proliferation of overbroad software patents has just begun. The market is a Darwinian environment. It selects for those who take advantage of flaws in the system and it takes time to optimize. A giant, gaping, cash-gushing flaw in the system right now is the granting of overbroad patents, and in software it is a relatively new flaw (though the flaw itself has a long and ugly history - Bell wasn't the only guy to invent the telephone - he was just the first to the USPTO). Graham makes this point to an extent saying that the USPTO hasn't adapted to software patents yet.

But he misses the correlary: Businesses have just begun evolving to take advantage of the software patent flaw. What has happened so far is only a twinkle of what is to come. Sure, Amazon got stung in the reputation department. But the patent trolls of the world have no reputation to sting. Is Eolas going to lose a bunch of customers over the active browser patent? I'm not saying Eolas is wrong, just that they won't be moderated by the environmental influence that Graham mentions regarding Amazon. The patent trolls are just starting to evolve, and they have natural defenses against the moderating influences that have kept the patent law departements of IBM, Microsoft, and Oracle in check.

And it's not going to be limited to a few fringe companies with a few fringe patents. More and more the executroids are defending companies that buy patents because they create liquidity in the IP market - enabling research heavy corps to capitalize their patents without having to bring products to market. IE: they are saying it is a good thing for the patent trolls to buy patents - regardless of whether they have any intention of taking the embodiment to market.

Paul is judging the system based on what has happened so far. But the market is just beginning to evolve. As broken as it is, the current state is very far from the invention wasteland, strewn with the bodies of a million inventors and ruled by packs of lawyers, that is coming.

From the essay

[Ricardo Lima]

When you read of big companies filing patent suits against smaller ones, it's usually a big company on the way down, grasping at straws. For example, Unisys's attempts to enforce their patent on LZW compression. When you see a big company threatening patent suits, sell. When a company starts fighting over IP, it's a sign they've lost the real battle, for users.

SCO, anyone???

Biology is worse

[sam_handelman]

I'll allow that he has a point, and that software patents are not as bad one might immediately think.

  HOWEVER, patents in biology are that bad, and they are worse. He talks some about rapidly changing technologies of the future - those are likely to be biotechnologies, and patents in those areas are already a disaster, with all of the negative consequences for innovation that he doesn't seem to think apply in software (and don't apply as much as I might ordinarily fear.)

  Personally, I am opposed to patents generally, and I am opposed to software patents. I can't answer the question - could you be intellectually consistent, and oppose software patents but support some other class of patent. I agree that you can't draw a distinction between "software patents" and "all other patents" (incl business model patents and so forth,) and that only patenting material things might be somewhat artificial.

  Nonetheless, I think you could support a more restricted patent regime (it happens I don't) which wouldn't include any software patents at all.

  The best thing I can say about the article is that it has an excellent quote for a sig:
"it's better, even from a purely selfish point of view, to be constrained by principles than by stupidity."

Re:Biology is worse

[randyflood]

I think that you can be intelectually consistant in opposing software patents but in thinking they are ok for physical things. The idea behind patents is to encourage people to disclose their discoveries in exchange for a monopoly for a limited time. But, I have yet to see a software patent on something that was

A. Not obvious, and
B. Going to be a useful contribution to society after the monopoly wears off

Hence, software patents do not encourage any kind of useful disclosure as far as I can tell. Instead, software patents seem to stifle inovation by threatoning to restrict each somewhat obvious and useful feature to companies who can establish large patent portfolios and do cross licensing deals.

gallery of "good patents"?

[jonathan_95060]

You can easily find a dozen "gallery of software patent horrors" by googling.

Finding a gallery of "good" software patents seems much harder. Can anyone point me to such a "gallery" or list?

Here are a few software patents (off the top of my head) that I consider reasonable (i.e. they patent something non-obvious):
    * RSA encryption
    * Diffe-hellman key exchange
    * IDEA encryption

It is not so much that I object to software patents as a whole it is just that I think

    sizeof(bad_software_patents) / sizeof(good_software_patents)

is a very large number (10000?). Also, if consider the function

              bad_to_good_ratio(int time)

This function appears to be generating a divergent series (i.e. limit is infinity as time goes to infinity).

wow

[Anonymous Coward]

Paul Graham can fucking write. That was brilliant.

Software Patents Are Different!

[logicnazi]

This was a very interesting article but I'm afraid I disagree with the fundamental assertion, that software patents are (in principle not as applied) no different than any other type of patent.

The first way that writing software differs from discovering a new kind of lithography or building a widget is that the underlying building blocks of software are completely understood. While occasionally we have theories that tell us what will happen if we try using such and such materials in lithography frequently in the physical world discoveries arise when we discover materials that behave in ways our theory couldn't easily predict. However, given executable (not even machine code) for a new piece of software and a processor reference manual what that software will do is completely predictable. Sure it isn't the case that every new physical discovery wasn't predictable like this but the fact that some are means the cost-benefit analysis for software patents is going to be less compelling than it is for physical patents.

The second huge difference is level of application. Software patents are things that are of immediate and direct use in real world applications. Even genuienly novel software patents are processes that almost certainly would have be developed without the incentive of software patents. For physical patents often types of fundamental materials research wouldn't be worth doing if you didn't know you could profit from the fruits of your labours if someone else comes along and figures out how to make something useful with it.

Thirdly the sheer ease of creating software makes software patents a worse deal. Creating a monopoly on some high-tech industrial process causes a few big companies to pay royalties and the cost of dealing with patent issues (excluding royalties paid) is fairly small. On the other hand every nerd with a computer can write software so the amount of innovation restricted by a software patent has the potential to be very large and the proliferation of many many companies and investors makes just traking the existance of patents in your field a very expensive endeavor.

In fact the author of the piece himself makes a very strong case that software patents are different when he argues that they are pretty much irrelevant to innovation in software even though they can be critical to innovation in other fields. Merely noting that we could scrap software patents without harming innovation is a *very* compelling argument to treat software patents differently than other patents. After all the only reason to have patents is to encourage innovation.

Ultimately it seems that the only things in software that are truly novel enough and reusable enough to warrant patent protection are interesting new algorithms. Perhaps something like shell sort might warrant patent protection but this kind of research seems to be occuring mostly at universities and has little need to be encouraged by patents. Besides once you start letting this sort of thing get patented there is no line you can draw to prevent math in general from being patented and as a mathematician this might make me rich there was a very good reason the creators of patent systems didn't want the sieve of erasthonthes (sp) to be patentable.

Why!

[Anonymous Coward]

Every time Paul Graham farts we have to hear about it on Slashdot?

Come on, people. The world is a lot bigger and more interesting than you're allowing the front page to suggest...

What are you talking about?

[Homestar Breadmaker]

The US has made huge leaps in penis pills because of patents. The leaps in actual medicine and drugs to save lives come from universities.

Re:What are you talking about?

[Anonymous Coward]

Because the Universities want the patent, the money and the prestiege. Universities are bussinesses. Ask any prof who got passed up on tenyear b/c his research isn't marketable.

Re:What are you talking about?

[Homestar Breadmaker]

Its "tenure" you dumbass, and it has nothing to do with marketable research or not. You are telling me universities are interested in helping people because its so financially rewarding, but huge pharma companies aren't interested?

Re:Who's the blowhard now?

[Java Pimp]

Besides, you're making a defence by appeal to authority

Umm... isn't that what your original post did?

You attacked him not on the merrit of his arguments but your perception of his qualifications to make such arguments...

The argument is either valid or invalid regardless of the qualifications of the speaker.

Get your own thoughts

[Anonymous Coward]

One thing I don't understand is the way everyone refers to as "IP" or Intellectual Property. How can anyone "own" a thought?

Patents + Software = eternal monopoly

[mmeister]

There are many sides of this issue to take, but I'm going to only focus on one that I think most people don't talk much about.

Software Patents extend for an exorbitant amount of time relative to the industry. 17 years amounts to around 11 generations (assuming 18 month cycles) of software. That's an eternity in the software industry.

It would be the equivalent of saying that a regular patent could exist for 50-75 years. Imagine having a 50-75 year monopoly license on a drug or a way more effeciently generate electricity. Yet, we treat software patents just like that.

There are plenty of existing cases that show this. Look at the generic multimedia patents that still affect software today. The reason most of these patents sound nonsensical when we see them is because we're about 2-3 generations past when they were relevant.

Ultimately, software patents don't spur innovation. Today, they actually stifle innovation. It is getting more and more difficult for the small companies to simply write cool new software. More lawyers are involved today and it slows down the process.

And these software trolls that exist and don't contribute anything to society make a bad situation much worse.

A detail that the patent would reveal

[hackwrench]

Patents these days are written either to hide details or to smudge the details enough so that the patent can appear to cover more than it should. I think that throwing out all such patents would clear up a lot of the problem.

Re:A detail that the patent would reveal

[Anonymous Coward]

Evidence for randomness? Try quantum physics FAG!!!

Re:A detail that the patent would reveal

[hackwrench]

One would do just as well to say that the Universe is proof of randomness. Unless you can point to specific evidence, I know of nothing in quantum mechanics that points to true randomness as the source of any complexity within quantum mechanics.

Corporations and humans

[Anonymous Coward]

The reason so many programmers are against software patents is not because they oppose patents as such. The reason is that we feel threatened, since the patents apply to us in our free-time tinkering.

So all that stuff about accepting the rules of the game instead of fighting them, yes it is reasonable for CORPORATIONS, but as a person, I am fighting for a society whose rules suit me better.

Maybe the solution could be that patents should not grant exclusive rights, rather, exclusive COMMERCIAL rights or so. At least the programmers that put that borderline patented algorithm into some Free/OSS project risk no harm. This way at least I would care MUCH less about software patents. //T

Valuation & a Patent's Value

[csorice7]

Couple thoughts as a previous big co. acquirer and with some experience in the patent arena.

As a big company... I've worked for a few Fortune 500 companies that have done extensive acquisitions and as a 'big company' guy, the concept that patents are solely used as a chip for negotiations is a naive statement. When buying the assets of a business, the patents and trademarks are typically the ones that last. Many entrepreneurs (I should know as I am one now) are interested in cashing in and as a result, an acquiring business cannot solely look to relationships or know-how for value, so IP is what's left. If you really have a truly unique idea/product/service, then protecting it should be stupid-easy (and with luck, people will say it was obvious 10 years later because of its streamlined solution :P).

Patent novelty is an issue in need of resolve... I don't believe in quantity over quality as Paul Graham might suggest, but I do believe in quantity to be successful. The process is age old - find needs, solve problems, research for current solutions and protect the best ideas. Getting quality patents should be easier now since more data is available. The USPTO and the market really do have a new set of options to consider (e.g. peer reviews, more collaboration amongst reviewers). Slashdot members can find novelty, or lack thereof, in a topic in less than 30 minutes - why can't the USPTO? With a production-line environment at the PTO, it is hard for patent agents to get a fair chance to research technology and be rewarded for deep tenure in a field. We should avoid thinking of this as 'patent reform', but rather as funding the system approapriately given the systems explosive growth.

In the end, patent ownership, like land ownership, has rights and benefits that shouldn't be reduced to a simplistic version of cold war analogies of large companies determining our fates. The patent system should level the playing field and give small guys and individuals a chance to have rights. BTW, if we should ever be worried about the small guy, now is the time. Individual inventors' patent issuance has decreased every year since 1999 - http://www.uspto.gov/web/offices/ac/ido/oeip/taf/i nv_utl.htm

CSorice

What does "patent" mean?

[twohorse]

As the article suggests, patents are good or bad depending on on they are used and defined, and as its human nature to bend rules to our own advantage, the uses to which patents are used out come down to the various patent offices.

Does it seem that overly broad and obvious patents are being granted to corporations with armys of legal teams?

Seems inevitable the way things are going that it'll soon be difficult to argue that software patents are anything except "evil".

Dude! Crawl out from under your rock!

[Anonymous Coward]

You must be the only person on Slashdot who doesn't know who Paul Graham is. The rest of us have been reading his essays for *years*.

Patent Trolls are a big problem

[epeus]

from my blog
I broadly agree with Paul Graham's essay on Software Patents, but I do think he underestimates the damage from patent trolls, and from what he calls the mafia-like behaviour of some patent holders.
Paul has been lucky in the field he has worked in, but in the Audio and Video area there are many patent thickets. Perhaps it is the history of Farnsworth's victory over RCA that makes video engineers patent hungry.
My first startup, The MultiMedia Corporation, was a spin-out from the BBC in 1990. One of our products was a program called MediaMaker that combined video from tape or videodisc, CD Audio, Pictures, digitised audio and Director animations into picture icons on a timeline for making presentations. It was demoed on stage at Macworld by the CEO of Apple, and we got Macromind to publish it.
Then the patent troll showed up. A company called Montage had made a video editing system that included several video monitors showing edit points from tape. The company had gone out of business but a lawyer had bought up the patents, including one on using a still image to represent a video sequence. The troll was working his way round the video companies, and he caused enough trouble to stop work on the product while we worked on a legal defence instead.
Later, while I was at Apple on QuickTime, there was a steady stream of patent trolls claiming that Apple should pay them royalties; enough to keep several lawyers busy, and a lot of engineers spending time working on prior art evidence demonstrations.
Several potential features were excluded from QuickTime due to patent thickets. The obvious one was the Unisys LZW patent that encumbered GIF, but there were other more subtle pressures that meant adopting open source codecs was discouraged. Working on the patent license agreements for MPEG meant that technology ready to ship was deferred pending legal agreement on more than one occasion.
So I'm much lass sanguine than Paul about this. I think software patents should not be granted, and the European Union's banning of them is the right decision. I hope the Gowers Review in the UK makes this UK law as well.

MOD PARENT SKY HIGH

[Anonymous Coward]

Thank you for sharing your most interesting experience of how patent thickets and patent trolls can damage software companies and start-ups. If you have not already done so, would you submit your comment (or ideally a longer, even more detailed version) to the Gowers Review? Please do.

Patents in the US Constitution

[Anonymous Coward]

I have always found it extremely anomalous that most copyrights and patents today belong to publishers and employers, whereas the US Constitution specifically stipulates that copyrights and patents may only be granted to Authors and Inventors.

Patents in General

[dcam]

I agree with Paul Graham's leading paragraphs to some extent.

One of the things I hear a lot on slashdot is that somehow software patents are different, that with software there is only one way to do things and that the patent blocks that (eg the LZW algorithm). What is more this is described as unique in software, ie this did not occur before they allowed software patents.

The thing is, its not. I was chatting to a biologist friend regarding patents, and there are similar issues in biology. He was describing one particular process for extracting DNA which is the so much better than earlier methods that it is, in effect, almost the only one used. The process (and the enzyme) is patented, so everyone who works in this area licenses the patent or buys the enzymes from a licensee.

Or take the medical field. If you patent a drug, and there are no other comparable drugs then if people want to use that drug, they must license from you.

Or take the area I was trained in, Engineering. Suppose someone patented FEA (Finite Element Analysis).

The point is Paul Graham is largely correct. The issues we are having with software have occurred earlier with patents. They are not completely new.

The real point of patents ...

[Daniel the Great]

...is to make money for lawyers.

Whatever your opinion on the patent laws - it is hard to disagree that a lot on money that could otherwise go into inovation is instead going towards the legal system. It is not surprising that the legal system would want to preserve this situation. And from time to time it likes to assert it's authority such as in the RIM case.

For Shame

[samantha]

I am amazed by the contention that we either have patents or secrets in the software world. I would think that the Open Source movement has made rather more of an impression than that! The take home lesson is that an awful lot of us find it very important and empowering to build, use and support software that is both open and can be used by anyone without encumbrance except to not place encumbrances on others.

Patents were invented for specific reasons. To evaluate patents the results and likely results must be considered as to how well they achieve or are likely to acheive what was intended. In software there is no great danger of more software being kept secret if we do not have software patents.

I am rather disgusted to see Paul Graham attempt to stampede software developers into seeking souftware patents less they be seen as foolishly not playing the game that they are in. Who set the rules to this game? Who said that we wish to play it? Didn't the very advent of Free and Open Source Software say clearly we are playing a different game with rules we feel are more of a win for all of us?

For shame. I am very surprised Paul Graham would write and publish such a thing. He certanily should know better.

Alternative solution

[wild_berry]

I think that recognising the pace of computer alogrithm development and cutting the duration of a software patent to, say, three years, with the requirement that, within that time, a product is on the market containing the patent-covered method sounds like a good way to allow people to benefit from patents which drive forward progress without constricting others' ability to compete.

Re: Biggest Fallacy

[dwandy]

It's tomorrow, and I suspect no one's reading this thread anymore, but I can't help but respond to this last post:

No. Pharmaceuticals are a good example here (although their patent protection has more in common with copyright than with other patents). Pharmaceuticals cost millions to develop. The biggest part of this cost is all the trials to verify safety. If anyone could just copy the drug after the trials, there would be no point. Companies would not bother to get drugs approved.

This is completely untrue. Drug companies exist in every nation, whether or not they have drug patents. Switzerland (IIRC) only had patents added to an otherwise thriving pharmaceutical industry in the 70's. It was then, and continues to be a world leader in pharmaceuticals. Patents changed nothing.
Secondly, trials would need to be repeated for a second company making drugs (how can the FCC be sure that the second-arriver got the same drug?) so these costs and this time spent is not a freebie to the 'leech' company. It's important to note that even breaking down a pill into it's basic elements doesn't tell you the process by which it was made, and therefore doesn't tell you how it was made. Work still needs to be done to re-create it.
Thirdly, while drugs do cost relatively lots to make, so does a factory, so what? It's a sunk cost for the company ... should making factories be protected by law?
Drug companies just make something that the bulk of us don't understand and can't really play with in our basements. It's shrouded in mystery, it looks complicated, and they state that they need high drug prices to cover future innovation.
Bullshit.
They make billions in profit. While I'm not opposed to profit, I am against laws that create artificial profits. If the drug companies didn't make a profit, then I could (perhaps) look at some laws and/or mechanisms like perhaps grants and subsidies (which by the way they get as well to ensure that research happens. So, now we have a situation where the drug companies are pocketing billions (i.e. not plowing that money back into research, but keeping it as profit) and then complaining that they need patent protection to pay for the future drugs...?!?? wtf!?
Read Chapter 8: Does Intellectual Monopoly Increase Innovation? (PDF warning) for more info on drug companies...

This is the primary point of patents (and copyrights). They reward the original inventor for taking the effort to come up with the invention in the first place.
A secondary effect is that patents require that the inventor expose the inner workings of the invention. .[snip]. The exposing is not necessary for the promotion of creativity; it's just an additional benefit of the system.

You've got it exactly backwards. Read up again. Patents are for advancing and promoting useful arts and sciences. No where does it state that it is for rewarding any individual. The reward is a means or a mechanism to accomplish this end; The promotion of advancement of useful arts and sciences is the end. There is nothing intrinsically 'right' about being given a monopoly over an idea for 20+ yrs...
The interesting thing is that you are right on the last point: exposing the 'inner workings' doesn't promote innovation, and that is exactly why patents are unnecessary. Innovation happens without them, but they add considerable cost to consumers by way of monopoly pricing and legal activities (lawsuits) by the patent holder.

Paul Is A Victim Of The Patent Stupidity

[Goo.cc]

In August 2002, Paul wrote and published the article "A Plan For Spam". On December 13 2002, Networks Associates applied for spam filtering software patent that includes "Bayes rules". From the patent (#6,732,157):

"wherein the utilization of the Bayes rules further includes identifying a probability associated with each of the words; wherein the probability associated with each of the words is identified using a Bayes rules database; wherein the electronic mail messages are filtered as being unwanted based on a comparison involving the probability and a Bayes rules threshold; wherein the threshold is user-defined."

Maybe I'm just not wearing my tin hat today but I believe someone at Network Associates read "A Plan For Spam" and applied for a patent on it, every though it was not an idea created by them. That is sickening.

Re: Biggest Fallacy

[mdfst13]

"Drug companies exist in every nation, whether or not they have drug patents. ... Patents changed nothing."

I think that the more critical question is if you can have ten year drug trials and no patents. Also, the Switzerland example is weak in that they were probably getting patents in other countries. I doubt that the market size in Switzerland itself could support a leading industry.

"Secondly, trials would need to be repeated for a second company making drugs"

OK, name a generic drug that required second drug trials. When you buy generic (non-Tylenol) acetaminophen, do you think that the generic version went through a repeat of the same testing as the original?

"how can the FCC be sure that the second-arriver got the same drug?"

Chemical analysis? Again, how does the FDA determine that a generic is the same drug?

"should making factories be protected by law?"

If anyone with a chem lab could duplicate them without having to pay the same construction costs? Possibly. In the real world, this is exactly the difference that I was highlighting. In factories, the design (copyable) is relatively cheap; the construction (needs to be repeated) is expensive. In pharmaceuticals, testing (only needs to be done once) is expensive; production is cheap. This is why I suggested copyright as a better model; drugs are more like writing (easy to copy but expensive to produce the first instance). We want to encourage companies to go through the testing phase and accept potential legal liability, therefore we give them protected markets after they go through that effort.

I glanced at your PDF link. You do realize that it's mostly speculation and opinion, right? It is written by a serious anti-patent advocate looking for every possible anti-patent interpretation of the data. Essentially the same kind of person who writes TCO studies for Microsoft.

If I didn't make it clear in my original post, I'll state it explicitly here. I am against software and business method patents. I am somewhat wishy-washy on patents on electronics or mechanical devices. I think that patents are the wrong form of protection for pharmaceuticals. Copyright would make more sense.

It's quite possible that pharmaceutical companies are receiving protection for the wrong things as well. Why do people buy Tylenol? You can get the same thing in a generic bottle for half the price. That's not patent protection that does that (the patent is expired). It's branding, the same place where Nike makes their profits.

There's a simple solution to that. Break up the drug companies. One piece owns the patent licensing (and research). One piece owns testing. The last piece owns marketing (and trademarks) and distribution. Now, when a patent is awarded to a licensing company, they need to pay a testing company to verify effect and safety. That cost becomes the limit on the patent. They can license for as much or little as they want, but once they make back their testing money, the patent expires.

The testing company makes money by running the tests that verify that the product is safe and that it has the effect that was expected. In return, they also take on the liability if it is later shown not to be safe.

The marketing and distribution company actually manufactures the drug. Each company that chooses to license the drug pays the licensing company the same amount per unit. During the patent period, they can only market the drug by their name and the patented name (e.g. acetaminophen from McNeil). They cannot trademark their own brand name (e.g. Tylenol) until after the patent has expired.

Now, marketing and distribution are separated from research and testing. Further, research is now rewarded for drugs that successfully pass testing only. Great marketing doesn't help them. Since the testing company bears the risk of bad testing but does not get the benefits of quick to market, undesirable testing does not get swept underneath the car