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US Software Patents Hit Record High
Aditi Tuteja writes "US Patent and Trademark Office made a new record for the number of software patents awarded in a single year. The agency has issued 893 new patents yesterday. Pushing the total to 30,232 in this year. If this is the trend, more than 40,000 software patents will be issued this year, according to the Public Patent Foundation. The previous record was set in 2004. Several major technology vendors have pledged not to enforce their patents against open source projects. IBM for instance essentially donated 500 patents to open source projects last year. Earlier this year, the US Supreme Court overthrew a prior judgement that required a judge to issue an automatic injunction if he found that a patent was being infringed."
If we didn't have all this intellectual property everywhere, I feel very certain that we as a society would never write a line of code again.
My turnips listen for the soft cry of your love
Ich werde stark diesen Patenten entgegengesetzt. Sie hemmen Innovation. Mindestens tun einige Firmen die rechte Sache und schützendes OSS von diesen Patenten.
How many of these are based on methods that are centuries old, like Projective Gauss-Siegel? And how many are just plain obvious?
Inventions have long since reached their limit, and I see no hope for further development.-- Frontinus, 1st cent. AD
How about patenting laws and social program methods? Then, if a party needs a particular law, they can license it. Imagine, campaigns of the future will be "Democrats to license healthcare law from LawPatentFolksInc Inc." This can also help prevent the passing of asinine laws. Think about it .. just before speeding, one can patent "method of reducing roadway speeding by fining arbitrarily large amount of money".
There's gold in 'dem there holes.
Basically the patent system is "accept all submissions, if it's wrong let people contest it in court". But don't they realize what a burden this is on society? Are patent examiners evaluated on how many wrong patents they let through, and fired if it is too high?
Let's think of something else insane. An office where you fill a form and for $1000 you get official permission to punch anyone you want in the face. Insane? Yes. But is the patent system less insane?
In other words, does anyone know if any of those IBM patents were good for anything? Because we all know that most patents are useless and IBM probably lets at least that many patents lapse every year to save patent maintenance fees.
Pop the champagne and unleash the balloons!! We finally made it past 40,000! Congrats to all those patent workers working overtime, scouring through all that prior art to make sure that it was a solid 40,000 patents, congrats to the management for finally making a system to promote real progress, and finally, a huge congrats to the inventors! You guys really did all the hard work, discovering 40,000 things that no one would have ever thought of if not for your hard toiling work! Now it's time to reap those benefits as you take your inventions and begin building factories to build or use those inventions of yours! We wish you could give you longer than 23 years, but with the market as it is now, everyone's going to want a piece of the action eventually, and it's only fair that we give them a chance.
Here's to another year of unprecedented technological improvement!!! Wow, 40,000... Who would have ever thought the human race was capable of such wondrous achievements?
Did you ever notice that *nix doesn't even cover Linux?
I bet David Banh is getting a woody right now.
Never play chicken with a passive aggressive.
Comment removed based on user account deletion
Such pledges aren't worth squat. While they may wind up in the record and thus could be used by open source projects as a defense in court, the bottom line is that one would still have to go to court to present that evidence. Against a well-financed corporation, that's likely to mean little, especially since some judges have even gone so far as to disregard prior art in order to uphold a patent claim.
The bottom line is that the court of law is not a rational venue, but instead seems to be a place to roll the dice, where the odds are stacked heavily in favor of whoever has the most cash.
That means that open source projects are going to be very vulnerable to patent lawsuits, even in the face of a "pledge" by the patentholders that they won't sue.
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
I'm waiting for the case of N peeps with vaguely overlapping patents [N > 2] and then they can have fights about it. I'd pay to watch that... wait...
I don't know why people are all proud about their patents. Places like IBMs hand out awards and framed pictures of [first page] the patent to inventors. Most of the time it's like "method and apparatus of doing something obvious, on the Internet." When patents are so easy to come by the value of them should be nil, or at least you'd like to think that...
Tom
Someday, I'll have a real sig.
In general I'm pro patent and copyright but I may be facing a real problem with a new project. How can I be sure I'm not infringing on some one else's patent? Is the first sign the lawsuit? There's no real system in place for spot checking so anything I do in software development may be in breach and I have no way to know it. I want to support the system but with potentially millions of patents in place it's going to be hard to avoid infinging. We're a small company so a lawsuit is french for bankruptcy.
I know postgresql at one point unintentionally used one of IBM's patents. They removed/rewrote the code though, since they use the BSD license. Using IBM's patent would prevent people from close-sourcing it without negotiating a license from IBM.
Do you even lift?
These aren't the 'roids you're looking for.
Ironically, this might actually be a good thing.
//0xFE
If, say, 90% of all obvious patents are granted _now_, then 20 years from now, all obvious patents will have expired and there wont be many more obvious "inventions" to patent.
Ergo: in 20 years - no more obvious patents.
Our current software patent practices make a mockery of the true intent of the patent system. Nobody working on any software project would be foolish enough to go checking to see if the software infringes because: (1) Odds are it probably does, and (2) if you proceeded without licensing all of the "inventions" that you "infringed" on, you are then liable for triple damages for willful infringement.
By allowing this state of affairs to continue, truly innovative patents are harmed because of the extreme disincentive to avoid willful patent infringement. The biggest losers are open source projects, since the patent trolls have free access to the source code to examine for violations. It seems that the patent system has been reduced to a risk to be mitigated against for many companies. Better stockpile some bogus patents of your own so you can fend of the trolls with patents of your own.
Time fails me to even get started about "Business Process" patents. Remember the Amazon 1-click patent anyone?
You know? Programmers can be clever, but not THAT clever. So I have to wonder not *IF* duplicate patents exist, but how often they exist and go on like that?
I can tell you that it is not a rubber stamp process as ours took well over 16 months and several submissions, back and forth questions and answers, clarifications and justifications. Probably several hundred pages in total and I shudder to think what it cost in lawyer fees. The USPO examiner did his job and really made us work for it, narrowing the claims and causing us to better differentiate from prior patented software.
I think you may misunderstand the first to file vs. first to invent situation.
Under both systems, if you have no patent, and somebody with a patent sues you for infringement, you can invalidate the patent by demonstrating prior art. This is exactly the same under either system.
The ONLY situation where first to file vs. first to invent matters is when you have a patent application and someone else also has a patent application for the SAME INVENTION. Note that NEITHER of you actually have a patent yet. In first to file systems, the person who filed first gets the patent. In the US with a first to invent system, we hold an "interference" proceeding to determine, then and there, which one of you invented first. This is extremely expensive for everyone involved, can take well over a year to straighten out, and is of questionable benefit.
Consider the alternative - you invented it first and can prove it, but someone else filed first. You won't get the patent, however you WILL have some valuable information: You can probably invalidate that patent with hardly a struggle. The patent that issued is far weaker, if not abandoned altogether. You don't get the patent protection you may have deserved, but the patent that was issued to the other guy is crippled. The subject matter of a patent that has been abandoned or invalidated becomes public domain, and therefore free to use by anybody.
The only people who win with a first to invent system are those people who truly seek their right to exclude but, for whatever reason, have delayed about filing the patent paperwork. There are many people who think we'd be better off harmonizing with the rest of the world and using a first to file system.
US Software Patent Examiners Hit Record High.
Because, judging by the kinds of patents they're approving these days, it's farqing weed city down there at the patent office.
--
Don't like it? Respond with words, not karma.
http://en.wikipedia.org/wiki/Tower_of_Babel
2. Process for granting intellectual property rights.
3. ...
That really doesn't add up. First to file means I can invent something a week before you, you file it first and get the patent, and then mine can still be used as prior art, thereby making a simple timing issue cause there to be no patent at all? I thought prior art under such a system had some requirements on some things, e.g. the invention had to be previously publically known or disclosed.
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WHO ATE MY BREAKFAST PANTS?
> Look on the bright side, at least we're getting all this patenting nonsense done with and out of the way all at once. In another 20 years there will be no more software patents because everything patentable, or at least worth wile patenting, (even the stupidest most obvious of ideas and interfaces) will have expired.
:-)
You say that as if "prior art" has any meaning to them
In 20 years they'll be resorting, like Sesame Street, to asking for patents on the letter "M". If they can't get a blanket patent then they'll be asking for a patent on the novel approach of using "M" to spell "M"other! Of course there will be a lot of litigation already about the use of the letter "S" as in "S"ue.
But who cares, with the new "Digital Rights Managment" that "M"$ will create by then, it will probably be illegal for anyone other than a certified "M"$ programmer to write programs because "w"e might infringe on some special interest groups' rights.
Read this as the "R"IAA's desire to ensure that only musicians who sign with the big labels have any hope of selling a recording... and of those who do? The small independant musicians?
Well, just like here in "C"anada, they'll be paying a royalty when they buy the CD blanks and these roylaties will be collected for the musical community... "E"xcept, of course, none of the money collected will go to any independant musicians.
Sesame Street is not be prior art because they didn't think of using the letter "M" as part
of computer software. Long before then of course, "C" will no longer be in use.
It's statistically inconceivable that 40,000 original, unique, useful and non-obvious methods would be created in a year. Most of them are probably garbage. If the PO did it's job, there might be a couple of dozen methods that would qualify under the Constitutional definition of patentability.
Not only will every thing then be up for grabs, but it will all be neatly documented at the USPTO!
Wake me up in 20 years.
A related question - if someone suspects you of infinging their software patent, but you claim closed source, trade secret status, how can they prove you infringed, if you don't allow them to reverse engineer your software, under penalty of the DMCA?
This issue is a bit more complicated than you think.
Where is the source of the figures? TFA points to a blog with zero reliability.
So with 800 something new software patents arriving every day, I am to get less than a minute a piece to read them through and figure out if any of it has anything to do with my line of business?
... Whatever the difference!
Hey, that way there is really only one viable business left. Logically I am forced to become a software patent attorney! Or a terrorist perhaps?
send + more == money?
maybe it just seems that way
When everyone has patents, the worth of an individual patent is reduced effectively to zero. I recommend that all IT companies apply for as many patents as you can afford, don't bother with patent lawyers and the like, just make vaguely unique things up and apply because the value of a patent is that you have one which others don't. If you can threaten them the way they are threatening you the value is lost.
Deleted
A while back I wrote an article on this.
Patents don't drive innovation, they are what happens when lawyers discover lucrative deposits of innovation sheltering in nice little shaded valleys, and decide to burn down the trees, strip mine the valleys, and extract the last drop of value from the accumulated innovation, creating havoc and destruction in the process.
The sad thing is that governments are convinced that patents are equal to innovation, making the stupid mistake of confusing correlation with causation.
Software patents are not what drives programmers to invent. Software patents are a tool by which lawyers rip-off the IT industry.
Every single time patent law is relaxed (in the US as in Europe) to include more software, you will find IP lawyers steering the process.
My blog
Alternatively, you could just do your coding anywhere outside of the USA, where software patents have no legal binding.
B.
Every experiment which ends in a big bang is a good experiment.
Nice thought, but false.
The number of possible ideas to patent is quite literally infinite. Progress does not stop. New obvious improvements become visible as soon as the last batch has been implemented, or even just considered.
Corporations that have huge patent portfolios will be able to happily continue to rule the marketplace using their armies of lawyers. They will be able to continue to prevent competition at a scale that literally hampers global progress.
The current system needs to go. The sooner the better.
Instead, our brave leaders want to remove the demand that the corporation getting the patent is the inventor.
You need to have watched SCO v. IBM more closely. When time had come for IBM to counter-sue, they have used 7(?) patents they have had for pretty obvious ideas.
It's not about quality - it's about quantity. If I hold 1000 patents you would think twice before suing me on patent infringement: it might take long time to overthrow my counterclaims backed by patents. If your patent is tested in court - that hurts credibility of your patent. And drain your resources to protect yourself from other patent sharks^Wholders like you are.
The software patents are not about technology or ideas anymore - they are now deterioration tool, to keep potential competitors at bay.
All hope abandon ye who enter here.
Also note, that there are pretty much of solid software patents. e.g. Frauenhofer's MP3 is one of them. They have come up with idea on how to make efficient digital music compression possible - and they have patented that idea along with adjacent methods to implement the idea. If you read the patents, you would notice that they are very narrow and do not conform to general patent structure "and the kitchen sink".
Though it is very hard to say that MP3 is software: I think now we have parity of number software v. hardware implementations.
I think, that if patents were mandated to be narrow - e.g. like legal documents - we would have seen much less pointless patent litigations.
All hope abandon ye who enter here.
"the invention had to be previously publically known or disclosed."
Yes, and this is intentional. The patent system was arguably intended to encourage disclosure in a time when we had nothing like the communications infrastructure we have today and science and innovation were not as collaborative with as rapid turnover as today. Therefore, the first-to-file system actively discourages sitting on inventions for years without disclosing them, essentially forcing a publish or patent situation.
Of course, at that time, such things were matters of years or even decades, and research and innovation was far more centralized and a far smaller community, creating a situation where the system could actually provide a benefit through increasing disclosure rate and communication.
These days with the foundation of knowledge needed for furthering innovation is available anywhere where there's a computer, an internet connection and a problem, the innovations can be published anywhere from a blog in rural India to a fishing village in Norway, and idea turnover rate is in the range of hours or days, the previous 'disclosure' system has become redundant and is now hindering, rather than furthering, the evolution of ideas.
There was a time when patents were awarded for inventions. Nowadays they are awarded for innovations. What is the difference?
The difference is that an invention is something new. An innovation is something old and well-known, where the innovator is the first to apply for a patent for, with the words "on the Internet" added.
May I be the first European to say:
"You Americans are soooo screwed!"
In Europe we will never be so stupid to legitimize software patents!
*** continues dreaming ***
I'm aware of the pros and cons of patents in general- but in the case of software I don't see how it can do anything but damage... the way I see it, software is basically about algorithms and algorithms are basically step-by-step procedures for solving a given problem. Okay, there can exist possibly infinite algorithms for a given problem but the optimal one will be....maybe one, and obviously that's the one that will be implemented. So if you patent an algorithm, I have to look for a less optimal way to solving that problem otherwise I pay you? What if there exists no other logical solution?
If implementations of an algorithm were being patented, then that's more bearable, I suppose but do they mean the algorithms themselves? This is almost like patenting science, itself.
My dad has a great story about trying to get a software patent from the stone age of computers. The US PTO came back and said to him, "there will NEVER be software patents."
stuff |
Let's keep in mind: (1) A survey of pantents shows somethng like 80% of patents could likely be successfully challenged on the basics: obviousness and prior art. (2) Only about 3% of patents are ever licensed to others. Less than 1.5% of patents ever make any money for anyone but patent lawyers.
As the other response noted, which I'll distill to a single phrase, "First to file awards the earliest possible disclosure of your invention." Waiting to file is at your own peril - you risk forever losing the patent rights to your invention.
But still, none of this prevents you from invalidating an issued patent by disclosing your prior art.
However, suppose one country in the international patent community choses to unilaterally extend the concept of patents to include methods (swinging on a swing sideways), business practices (pouring the milk on your own cereal), software (editing colours in an image using a computer), or harvesting traditional plants (basmati rice). Their nationals will be able to file patents for heroic ideas such as these (hooray!), but people in other countries where such patents are not recognized will be unable to apply for them.
This argument could be taken either way. The TRIPs agreement requires that patents be available for "any inventions, whether products or processes, in all fields of technology, provided they are new, involve an inventive step and are capable of industrial application". It could be argued that the European Patent Convention and all subsequent rulings against software patents and the like are not compatible with this section of the TRIPs areement by excluding a subset of the possible patents. However, it does seem against the spirit of reciprocality within TRIPs for one country to unilaterally extend patent law in this way.
Oh, and by the way, it stinks too.
I'm going to file a software patent for both filing patenting software patents - that'll show 'em. Then I get royalties on every patent filed.. nice.
The reason your idea would not work is that there is no duty to conduct a comprehensive search for a prior art before filing a patent application. The reason that there is no such duty is that a full search of every printed publication that is in existence would cost hundreds of millions of dollars. Under Federal Rules (37 CFR 1.56), patent applicants are required to submit material art that they are aware of, and patent applicants commonly submit dozens of prior art references for consideration by the USPTO. If an applicant (or its attorneys) violate Rule 56, the patent can be invalidated for inequitable conduct.
Additionally, due to the billions of prior art references that exist, invalid patents are often granted without any fault whatsoever by anyone. Should my client in Arkansas be punished (for perjury as you suggest) for not being aware of a 1990 paper (written in Greek) that is only accessible by manually flipping through a card catalog in Athens? The 1990 Greek paper, indexed only in a physical card catalog in Athens, would be prior art that could invalidate my client's patent, why should he (or I) be punished for not finding it?
Did that Norwegian communist Torvaltos guy every finish his Hurd kernel?
My turnips listen for the soft cry of your love
Patents in general poison the design, engineering and production regimes of progress. They direct wealth to specific individuals, often to what seem to be absurd degrees, at the expense of getting the next (set of) thing(s) done.
Like many efforts that one can trace back to good intentions, patents represent a spectacular backfire in social planning.
This wouldn't be so bad (speaking as a US citizen), but we have entirely lost control of our government and can no longer make changes of government systems that have gone bad using any peaceful means. Consequently, we will remain saddled with greater and greater retardation in every regime from fiction to mechanical widgets and large, complex systems.
I think historians may look back upon this time, specifically upon intellectual property issues, and tag it (quite accurately) as one of the key factors leading to a "dark age"; as progress slows down and eventually reaches a point where it just isn't worth making the effort (and we're not that far off now, I think.)
You would want something to give when it is so obviously broken, and in this case, that something would be the patent system. But I don't think it will. The government never admits it is wrong... just look at the drug war. Billions spent, and what do we have? Cheaper, better, more easily obtained drugs.
Well, there's a bright spot... maybe progress can go underground as well. It seems that one of the key factors in "thriving" is to get away from our government. :-(
I've fallen off your lawn, and I can't get up.