EU Software Patent War Ignites Again

pieterh writes "ZDNet UK has a detailed article on the heating-up of the software patent debate in Europe. A new motion before the European Parliament calls for a harmonised patent court (EPLA) that would be able to enforce software patents across Europe. This comes just 15 months after the EP rejected the infamous Computer Implemented Inventions directive." From the article: "Patents on software are formally disallowed under the European patent system, but are routinely granted by the European patent office, according to critics. They are currently difficult to enforce in many EU member states, something critics say would be changed by the failed software patent directive, and now by the EPLA. Software patents are generally considered to add to the legal costs of large enterprises, as well as creating a hostile legal environment for smaller software businesses and open source projects."

Comments

the best solution, obviously

[User 956]

ZDNet UK has a detailed article on the heating-up of the software patent debate in Europe. A new motion before the European Parliament calls for a harmonised patent court (EPLA) that would be able to enforce software patents across Europe.

Yes, because clearly the best solution isn't to simply fix the law, but to create an entirely new governmental bureacracy.

Re:the best solution, obviously

[Qzukk]

the best solution isn't to simply fix the law

The law is fixed. The law specifically disallows software patents. The "infamous" directive mentioned in the writeup failed, so the law still specifically disallows software patents. The patent office issues them anyway. Isn't it funny how laws telling people what to do result in fines, jail time, and execution if you break them, but laws telling the government what to do have absolutely no punishment when the government breaks them?

So to enforce the patents, whoever is behind this clusterfuck intends to create an entirely new court system, specifically for the purpose of "legislating from the bench".

Re:the best solution, obviously

[User 956]

The "infamous" directive mentioned in the writeup failed, so the law still specifically disallows software patents. The patent office issues them anyway.

Right. Which means the law is broken, because the penalties aren't a deterrent.

Re:the best solution, obviously

[Anonymous Coward]

All we want to do is create a harmonised patent court. Let a thousand, nay, a thousand thousand voices sing in unison the beauteous virtues of the patent.

Join me, my children.

Won'drous pa-tent fill'd with light
Bless'd be thine en-dur-ing sight
Yield thine cof-fers 'fore my suit
Ren-der o-thers' ef-forts moot.

Righ-teous pa-tent guard these joys
Lest a-no-ther have such toys
Hold for me mine right-ful worth
All these thoughts u-pon this Earth.

Beau-teous pa-tent for mine good
As an in-verse Ro-bin Hood
Suck-le-ing at Na-ture's teat
Strike down those who would com-pete.

Holy pa-tent bol-ster us
Though thine claims be ob-vi-ous
Jud-ges ab-sent nigh a clue
Shall
- be - the - ones - to - up-hold - you -

Re:the best solution, obviously

[rts008]

Clearly it is broken.
I support laws that enable the public at large to admin a kick to the testicles of anyone proposing to patent any software. To support ERA, give the offenders a choice between the public kick in the nads, or a double-bit axe shoved up teh *ss.
This software patent insanity needs to stop and just go away. Copyright reg's and laws already cover software code- we don't need to overburden the patent system with this shite!

Re:the best solution, obviously

[mpe]

Yes, because clearly the best solution isn't to simply fix the law,

The law isn't actually broken here, the issue is more one of lack of enforcement.

but to create an entirely new governmental bureacracy.

However not one which would actually do something useful. e.g. compile a list of bogus patents to prevent any possible attempt to enforce them.

Re:the best solution, obviously

[Flyboy Connor]

but laws telling the government what to do have absolutely no punishment when the government breaks them

The EPO is not a government. It is an independent institute, that has the EC-granted power to award patents.

However, even the EC is now getting weary that, in practice, the EPO is actively involved in policy-making, instead of just executing the policies set by the EC.

Re:the best solution, obviously

[Dr_Barnowl]

In fact, that's the best idea for a government institution in terms of IP law that I've heard in a long time ; a department whose sole occupation is to debunk existing patents.

You could argue that it would encourage innovation merely because it reduces the cost of performing patent searches by weeding out a certain amount of the crap that already exists, making patent lawyers cheaper.

The patent office subsist from the fees they earn from patent applications and therefore have no real incentive to examine patents rigorously ; if they can pass a patent quickly, they will, because they can't let it cost them more than the filing fees to do so (on average).

An "un-patent" office would have no such concern, because it's funding would be independant of the number of patents filed. Of course, they'd be prone to the same possibilities for bribes as patent clerks (fat brown envelopes taken in order to go and debunk a few perpetual motion machines instead of "one-click" shopping, say).

The idea fits nicely with the ideas of "competition" that capitalists claim to support anyhow ; the patent office is not at present such an environment ; with the exception of the ending of patent terms (which can be worked around by patenting some minutiae of the existing process and gaining another 17 years), there is no real attrition.

Nostalgia...

[patrixmyth]

Ah, remember the good old days with patent and copyright law was crafted to ENCOURAGE innovation and PROTECT creative work, rather than STIFLE competition and REWARD petty lawsuits? No? Well, me neither, but I've seen the footprints in the woods.

Re:Nostalgia...

[kfg]

Yes.

The mission statement of the copyright act under which I grew up:

"The main object to be desired in expanding copyright protection accorded to music has been to give the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests"

The term was 28 years renewable, giving a maximum of a 56 year monopoly, double the previous time limit. Who knew that I would one day be looking back at those footprints in the woods with nostalgia for a time when copyrights might last more than a century longer and cover every laundry list and office memo?

KFG

Re:Nostalgia...

[rackhamh]

Out of curiosity, can you provide an example of when the patent system has failed to "PROTECT creative work"?

Re:Nostalgia...

[lysergic.acid]

How does the patent system protect creative work? By disallowing anyone else from using the same idea after you've patented it? Is that what you call protectiong--by preventing others from benefiting from an idea that others could have just as easily arrived at on their own? Just look at all of the recent patent-related lawsuits. They only protect the right of individuals to monopolize an idea and prevent society from benfiting from the idea or taking the idea further (and in some situations, from even realizing an idea that hasn't been put to work)

Just because you thought of the wheel first doesn't mean you own the exclusive right to use the wheel. You may have come up with the idea first--which gives you an advantage if you want to profit from the idea--but that doesn't mean others wouldn't have thought of it at some point. Say someone invents X and patents it. Then 50 years later another young man independently thinks of the idea to build X. Should he have to pay royalties to the first inventor to use his idea and perhaps improve on it just because he was born later than the first inventor? Patents basically punish people for not being the first to think of the idea. But being the first to come up with an idea doesn't give one any more merit to hold exclusive rights to the idea than what is naturally bestowed to the original inventor.

Re:Nostalgia...

[rackhamh]

How does the patent system protect creative work? By disallowing anyone else from using the same idea after you've patented it?

I'm sorry... this just doesn't compute. Allowing people to COPY ideas is now equivalent to "creative work"???

Say someone invents X and patents it. Then 50 years later another young man independently thinks of the idea to build X.

Have you ever heard of "patent terms"? Patents grant exclusive licensing rights FOR A LIMITED TIME.

Patents basically punish people for not being the first to think of the idea.

Yes, how horrible of us to be rewarding people for being the first to invent something. And all those other people who COULD have invented the same thing. But they didn't. Poor things. How will they ever put food on their tables?

Re:Nostalgia...

[Anonymous Coward]

I'm sorry... this just doesn't compute. Allowing people to COPY ideas is now equivalent to "creative work"???

Yeah, because all creative work just pops out of nothingness, without building upon previous ideas. Sorry, Google - the idea of a program that indexes web pages is patented. Please wait 50 years until Altavista patent expires...

Re:Nostalgia...

[howlingmadhowie]

okay, let's say i have a new idea. in order to get a patent on this idea, i have to implement it first and be able to show a working model. the trouble is, my idea can only be implemented after i have implemented other ideas which are already patented. these patent holders refuse to give me the right to implement the things covered by their patents. now i cannot do anything with my idea. instead, a large company will probably think of it at some stage and patent it.

so that's how patents are bad for ideas.

howie

Re:Nostalgia...

[Skrynesaver]

In fairness copyright does protect work. The two are very different, to take the literature analogy a patent on "A story in which two people triumph over adversity, falling in love with each other in the process" would be worth a shedload of money if literature were patantable. Scene II act i of Romeo and Juliet cannot be copyrighted in another work of literature in it's entireity.(bad example but I don't read much fiction)

On a seperate nut related issue, I'm from Ireland, the same country that has given us that shaven monkey McCreevy. Last time out FF(McCreevy's party) were the only ones to vote in favour of this POS idea. I'll be harassing my MEPs on this issue and would appreciate assistance in producing a clear spiteless explanation of why patents are wrong that an elected polititian could understand. My local MEPs are two profesional politicos (one in McCreevy's party) and an ex-jounalist.

Re:Nostalgia...

[Bloke down the pub]

preventing others from benefiting from an idea that others could have just as easily arrived at on their own

I picked the wrong lottery numbers last week. But I could just as easily have chosen the winning ones.

Re:Nostalgia...

[KDR_11k]

1. A patent lasts for at most 20 years. Ask someone else for the specifics about filing, granting and the appropriate lengths for each.
2. Google is free to ask Altavista for a license in that scenario.
3. Ideas aren't patented, implementations are. Altavista would have patented building an index by doing A, B and C, if Google could build an index using only A and C or maybe A, B, D etc they wouldn't need to pay license fees since their implementation is new.

Re:Nostalgia...

[KDR_11k]

Then implement only the parts necessary for your patent and describe how they would interface with other patented parts. If that fails the implementation is at least documented and is prior art should anyone else attempt to patent the same thing.

Re:Nostalgia...

[howlingmadhowie]

would be a good idea, but you still have to show a working model.

Re:Nostalgia...

[mpe]

How does the patent system protect creative work? By disallowing anyone else from using the same idea after you've patented it? Is that what you call protectiong--by preventing others from benefiting from an idea that others could have just as easily arrived at on their own?

In which case the "obvious test" might apply. This cannot happen where the people examining patent applications are not experts in the subject(s) concerned. Especially since "obvious things" may not be well documented because anyone writing technical documentation will tend to assume the reader knows the "obvious".

Just look at all of the recent patent-related lawsuits. They only protect the right of individuals to monopolize an idea and prevent society from benfiting from the idea or taking the idea further (and in some situations, from even realizing an idea that hasn't been put to work)

Which is counterproductive, especially in places such as the USA where "intellectual property" only exists to further the publication, distribution and development of useful ideas in the first place.

It's too bad...

[TheWoozle]

It's too bad that I can't patent a political process by which ridiculous laws are passed by clueless people. I'd be the richest man in the universe.

Re:It's too bad...

[alan.briolat]

Unfortunately, the human race has several thousands of years of prior art on that one....

Re:It's too bad...

[jmv]

Sorry, you can't. Too much prior art.

Sad, isn't it ?

[mickwd]

From the article:

In rebuttal, the three groups have filed a motion calling for "balance between the interests of patent holders and the broader public interest in innovation and competitive markets"

Sad, isn't it, when the groups opposing this are calling for a "balance" between patent holders and the greater public good.

Surely, the whole point of patents was "the broader public interest in innovation and competitive markets" ?

So how can McCreevy and co. get away with opposing "the broader public interest in innovation and competitive markets", the will of our elected EU politicians, and the wishes of by far the majority of the population who have expressed an interest in the matter ?

I am apalled

[flooey]

Patents on software are formally disallowed under the European patent system, but are routinely granted by the European patent office, according to critics. They are currently difficult to enforce in many EU member states,...

You mean member states aren't willing to enforce patents that aren't allowed to be granted in the first place? What is this world coming to?

Re:I am apalled

[symbolic]

I believe that's rather how the whole mess started in the US- and as you might expect, some douche bag lawyer started interpreting this to mean that software *itself* was patentable. The momentum started building, the USPTO was making a nice chunk of change on patent fees, so really didn't see any impetus to change, and suddenly, we were left with something that is completely out of control. And now that there are established and entrenched interests, fixing the problem will an order of magnitude more difficult.

Re:I am apalled

[Skizmo]

The funny thing is, that the EU doesn't have member STATES at all. The EU is made of COUNTRIES.. .not states.

Re:I am apalled

[KDR_11k]

I think only Americans see a state as being something different from a country or nation. The EU has member states since the word state is usually interchangeable with nation or country. Maybe the USA regions are called states because the USA was more like a political union like the EU or the Commonwealth when it began?

Member state:
The countries that belong to an international organisation are its 'member states'. The term is also often used to mean the governments of those countries.
From 1 May 2004, the member states of the European Union are Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. For the years when they joined the EU, see 'enlargement' (above).

from http://europa.eu/abc/eurojargon/index_en.htm

international issues

[sedyn]

I've always wondered about how patents work beyond their own borders (I don't understand patent law very well).

For example, if patent office A says that something is obvious, but patent office B in another nation claims that it isn't (and subsequently grants the patent, potentially to another company) what are the possible ramifications and remedies? Or is a company expected to request patents by all offices? Or once a patent is declared invalid in one jurisdiction is anyone else (in another nation) allowed to apply for it?

What I just asked could be complete non-sense, but it is something that I am curious about.

Re:international issues

[Burz]

For example, if patent office A says that something is obvious, but patent office B in another nation claims that it isn't

The answer is you sign a "free-trade" treaty to "synchronize" your "intellectual property" laws with the United States. Then you just do whatever the Americans tell you.

Re:international issues

[chriseyre2000]

You need to remember that there is no need for laws to be internally consistent. This makes more work for the lawyers... For example one of my university lecturers attempted to create an expert system to determine if a given individual could have a UK Passport. The legislation gives different answers depending upon the order that the law is read.

Re:international issues

[KDR_11k]

There is an EU patent office, I'd guess you need to get the patent through that if you want it to be enforceable in all countries, no just the one you gained it in.

Re:international issues

[Alsee]

The answer is you sign a "free-trade" treaty to "synchronize" your "intellectual property"

You horribly misspelled "harmonize".

-

Why SMALL businesses reject software patents

[Anonymous Coward]

The enormous cost (3million EUROS) of litigating any patent dispute means small businesses simply cannot benefit from having patents when a large company infringes their patents . We absolutely do not want software patents because they are harmful to innovation in our own businesses. Indeed, we demand any attempt to introduce them in Europe is completely rejected. Two years ago, over 200,000 small businesses in Europe signed a petition to the European Commission totally rejecting the idea of introducing software patents in Europe, and totally rejecting the idea of harmonising legal processes in a way that might support software patents.

Re:Why SMALL businesses reject software patents

[rackhamh]

Please tell me how any of this is unique to software patents.

If you want to argue that the entire patent system should be abolished, feel free to do so. Otherwise, I'd love to hear what makes software patents a special case from a small vs. large business perspective...

Re:Why SMALL businesses reject software patents

[Anonymous Coward]

If you really like strongly logical argument, please tell me why the problem, which you seem to acknowledge, of patents being completely useless to SMALL business because patent litigation costs are 3million EUROS per lawsuit means patenting should now be extended to allow software patents, creating an unwanted problem of unaffordable software patent lawsuits for SMALL businesses threatening their very existence, the jobs and economic growth that they provide. Remember that more jobs in Europe are provided by SMALL businesses (t/o less than 10m EUROS) than by big businesses.

Re:Why SMALL businesses reject software patents

[rackhamh]

the problem, which you seem to acknowledge, of patents being completely useless to SMALL business

I acknowledged no such thing. I think patents can be quite useful for small businesses. My point is simply that all the rage directed at software patents in particular is somewhat misplaced.

Look, in an ideal world, small businesses would be able to sue big businesses to their heart's content. But in the real world, some people have more money than others. Unavoidable fact.

That doesn't mean that patents should be abolished entirely. It's just a variation of the old saying, "Democracy is the worst kind of government... except for all the others." Patents are the worst way of protecting intellectual property... except for all the others.

Re:Why SMALL businesses reject software patents

[rackhamh]

So they should be able to influence public policy for every one else? To "preserve the status-quo"?

Putting those words in quotes implies that I said that, which is completely dishonest. I said nothing of the sort. What I'm saying is that it's inevitable that some businesses won't be able to afford to assert their patents. However, in the absence of a better alternative, just because some businesses can't afford to assert their patents doesn't mean that NO businesses should be able to.

"America has the best democracy that money can buy"
s/America/The EU/

Which does absolutely nothing to address my actual point. Can you propose a better alternative, or are you simply inclined to wail away about the injustices of the world?

Patents are not suitable for protecting mental steps, maths, software, business processes or literature. That's why software was explicitly excluded from patentability, big money, bought politicians and fancy lawyers don't change the fact!

Software is nowhere near the same as a mental step. Can you simply think a program into operation? No, you require physical processes to make it happen. And I've already discussed why copyright laws aren't sufficient to protect software inventions.

Re:Why SMALL businesses reject software patents

[SmokedS]

In other industries it costs a whole lot to innovate, and it is, compared to software innovation, extremely rare. Writing software is innovation.
I write hundreds of potentially patentable algorithms and combinations of algorithms every week Writing one is a minutes work. Checking if it in itself, or in combination with some other part of the software violates a patent is a major project for a patent attorney.

Re:Why SMALL businesses reject software patents

[rackhamh]

Your argument falls down because it contains an illogical step. I and most SMALL businesses are not arguing for the abolition of patents. We are arguing against introducing a harmful new type of patent in Europe that will be very financially damaging to SMALL businesses in Europe. What we SMALL businesses want is very simple. We need the existing level-playing field for business in Europe to continue as it is because otherwise software patent lawsuits will be extremely financially harmful to our SMALL businesses. All we want is to keep the status quo -- it obviously does not mean or imply abolishing all patents. It is for you, the big business patent fanatics to explain why your proposals for software patents in Europe do not constitute an economic threat that would be extremely financially damaging to SMALL business.

What "level playing field" are you talking about? No such thing currently exists! As it stands, Microsoft can simply copy your ideas and force you out of the market. Do you really think that's better than having at least a CHANCE of asserting a patent against them?

By the way, would you like to disclose what is your interest in this matter? Do you run a SMALL business, or are you a patent lawyer?

My website link is there for any and all to click on... I'm not trying to hide anything at all.

Re:Why SMALL businesses reject software patents

[rackhamh]

I write hundreds of potentially patentable algorithms and combinations of algorithms every week

No you don't. Pure algorithms aren't patentable. You need to understand that in their current state, software patents are essentially business method patents, tied to a computer structure. They are, essentially, patents on an inventive computer-implemented means of accomplishing some task.

Re:Why SMALL businesses reject software patents

[SmokedS]

Oh, you mean like apparatus for switching view via button press and such? I don't write those? You coulda fooled me.

Re:Why SMALL businesses reject software patents

[rackhamh]

I'm usually running through the code execution path in my head as I'm writing my beautiful poetry. I'd love to hear about how you write software if you are incapable of thinking a program through before you write code?

Way to miss the point and mangle my words. All inventions obviously start out as ideas. But please -- continue to explain to me how software is merely equivalent to a mental step.

Re:Why SMALL businesses reject software patents

[Anonymous Coward]

What "level playing field" are you talking about? No such thing currently exists! As it stands, Microsoft can simply copy your ideas and force you out of the market.

Illogic like that will get you nowhere except a state of embarrassment. It ought to be crystal clear that without software patents any SMALL business can copy Microsoft's ideas just as much as they can copy the ideas of the SMALL business. That is the level-playing field, and on it, small businesses can compete well against big businesses. That is exactly why big businesses want it changed to be tilted heavily and unfairly in their favour against SMALL businesses.

In any case, time-to-market is what most software businesses consider as the key issue. Copying the ideas in somebody else's piece of software is very rarely worthwhile or practicable when all you have to study is the compiled executable file because it requires working out the algorithms and only the most obvious ideas can be quickly reverse-engineered into copy algorithms that can be implemented in new software. Software patents would stop the copying of ideas only in one direction between large and small software businesses - from large to small.

As for your interest in this debate, you do not completely hide what you do. You are an American patent lawyer earning not much less than a million dollars a year from patent litigation. You clearly have a massive vested interest in this debate which is why you are trying to argue that a foreign entity, the European Union, should introduce software patents which would harm European SMALL businesses but which would benefit the largest companies in the world, many of which are your current or future clients.

Re:Why SMALL businesses reject software patents

[rackhamh]

Oh, you mean like apparatus for switching view via button press and such? I don't write those? You coulda fooled me.

I'm sure there's prior art for that. It's not patentable.

Re:Why SMALL businesses reject software patents

[rackhamh]

Which is commonly called "software" and specifically excluded from patentability in the EPC.

Yup. And that's what we're talking about. Some people agree with the law, and others don't. You're simply restating the problem.

Re:Why SMALL businesses reject software patents

[SmokedS]

Seems the patent officials disagreed.
http://en.wikipedia.org/wiki/Tab_(GUI)#Patent_Disp ute

Re:Why SMALL businesses reject software patents

[rackhamh]

it ought to be crystal clear that without software patents any SMALL business can copy Microsoft's ideas just as much as they can copy the ideas of the SMALL business.

Your naivety is scary. The problem isn't whether you can copy the idea -- it's whether you can actually COMPETE. Do you have millions of dollars to throw at advertising? Government lobbyists? Exclusive contracts with major institutions? I don't think you understand what it takes to be successful against these companies.

As for your interest in this debate, you do not completely hide what you do. You are an American patent lawyer earning not much less than a million dollars a year from patent litigation. You clearly have a massive vested interest in this debate which is why you are trying to argue that a foreign entity, the European Union, should introduce software patents which would harm European SMALL businesses but which would benefit the largest companies in the world, many of which are your current or future clients.

BULLSHIT. Everything you just posted about me is a LIE. I've been decent until now, but you're completely misrepresenting me, and that's simply reprehensible. I am NOT a patent lawyer. I am a patent ENGINEER, which is OBVIOUS from my WEBSITE, which I referred you to. You're also welcome to visit the website for the law firm I work for, which is clearly LINKED from my homepage, and see where I am in the employee guide. I have a TECHNICAL degree, NOT a LAW degree, and I write patents. I have never been involved in a litigation in my LIFE. My annual salary doesn't even APPROACH 6 figures, you moron. I'm in this business because it INTERESTS me, not for the money.

The next time you respond to one of my posts, at least make an EFFORT to know what the hell you're talking about.

Re:Why SMALL businesses reject software patents

[rackhamh]

It would be more useful if you linked to the actual patent, so I can see what was actually infringed.

I'm willing to bet that Adobe held a patent for a fairly specific use of tabs, and that's what Macromedia infringed on. I'd also be VERY interested to learn what the countersuit involved, since it resulted in Adobe paying out more than it won in the initial suit.

Seriously, a couple of vague sentences in Wikipedia, lacking references to source materials, doesn't do much to prove a point.

Re:Why SMALL businesses reject software patents

[SmokedS]

I'm sorry, was that the sound of you scrambling desperately to serve up a red herring, in an attempt to divert attention from the fact that I've demonstrated quite clearly how software is different from physical products?

Nice try.

Re:Why SMALL businesses reject software patents

[rackhamh]

Please calm down and don't be so easily offended. I am sorry I got your occupation and earnings wrong (I don't have time to read your website), but it is still true that you have a vested interest in what you are pushing the EU to do.

Spare me the sanctimony. Making claims about my occupation and vested interests without knowing anything about me is no better than lying. In either case, you've fabricating information about me to forward your agenda. It's dishonest and reprehensible. And accusing me of being "easily offended" is just a manipulative way of trying to avoid responsibility.

I can see there's no point in continuing with you, because you're just repeating the same arguments over and over. Your bottom line is, "It's expensive!" But your alternative is a free market, in which fairness somehow emerges from an absence of law. Please. Fairness in this world is only as likely as our ability to enforce it.

Good luck with your business. Someday, maybe, you'll realize that the patent system -- although certainly imperfect -- has a net positive effect when compared to the alternative.

Re:Why SMALL businesses reject software patents

[csirac]

Your naivety is scary. The problem isn't whether you can copy the idea -- it's whether you can actually COMPETE.

Your ignorance is scary. Do you really believe they need your help, and the patent office's help to continue succeed as they are already? They don't need software patents NOW, so what makes you think they need them at all?

Do you have millions of dollars to throw at advertising? Government lobbyists? Exclusive contracts with major institutions?

This is absolutely laughable. Why the hell do you think litigation should be the answer to everybody's problems?

Have you ever worked for a small company? Worked with one? Worked in a country outside the USA? _LARGE_ business names that you've never even heard of, let alone the ones you have, employ a tiny tiny fraction of employment to the workforce the world over. Consequently they also provide a tiny fraction of overall services to other businesses, and government.

Your understanding of business seems to be lacking, although I'll also admit I'm just an engineer that happens to work for a small company. This year we've done several contracts for the federal government of Australia; and one for a large multinational. The rest of our business is to other small businesses, but by no means do we need: government lobbyists (well, we do now - because we have software patents, thankyou FTA!), advertising dollars, or "exclusive" contracts with major institutions (we're already their best choice based on technical merit, we don't need secret handshakes to earn money).

I don't think you understand what it takes to be successful against these companies. ... I can't respond to that statement without resorting to expletives... all I can suggest is try and open your eyes a little, and look before you think.

All these guys are asking for is the status quo, like he said. Not world domination - just to keep doing what they're doing. Patents are meant to encourage innovation which benefits mankind by way of enabling a temporary monopoly that rewards the inventor, NOT to encourage monopolies (using ideas that are often: obvious, duplicates of, or outright created by other inventors years earlier), NOR are they meant to simply act as a vehicle to crush competition.

MOST engineers I know from university are employed by small niche companies, some of them even employed by big names/big government for parts of contracts these guys tend to be best at. It's amusing that without even looking, they are fully aware of some of their products infringing on patents (thanks to industry journals publicising stupid patents) from their big-name competitors - the best they can do is hope they stay small enough to avoid attention. You do not need to be "number 1" to be a useful entity. Are you saying all small businesses should be abolished because they're useless? That there's no point to them, so stepping on their toes doesn't matter? The point is that without patents, small businesses are turning a profit, employing most of the workforce, but what you're saying is that you know better?

Next we'll see music patents. Seriously, the biggest threat to small business is other businesses ripping off their copyright, which is much simpler to prosecute even if the other side has a huge army of undead lawyers.

I'm an engineer at a small company (less than $2 million AUD a year), and I'm holding up a small system that's completely developed in-house used as part of our service business. We are profitable because my wages plus off-the-shelf hardware costs a fraction of what the license fees for an off-the-shelf software product with proprietary hardware would be. Thanks to the Free Trade Agreement with America, we're now open to frivilous patent litigation from the big name companies selling their solutions in the USA and elsewhere.

Where does that leave my small company? Up shit creek, actually. We have no interest in filing patents for "our" innovations; what the hell would we fight them with? A

Re:Why SMALL businesses reject software patents

[Anomalyst]

copyright laws aren't sufficient to protect software inventions

Sorry, I have been coding for over thirty years there is NO "invention" taking place in that process any more than a plumbers or carpenters solution to a tricky bathroom remodeling around a basement support pole is patentable. Solving these issues can be done by any competent practitioner, similar coding would be created by a majority of the programming community given a correctly defined problem. I.E. what we do is OBVIOUS and NOT patentable.
Despite the ignorant opinion of a Judge, there is nothing patentable in any piece of code in and of itself. If the USPTO had a history of correctly, consistantly and properly doing their job, I might concede that its possible that when software is intimately embedded in a physical device that such a device in its entirety might be patentable, but it would have to be something non-obvious and provably absent of prior art, and not just "with a computer" or "over the internet" of some other solution. We in the US are already inundated with big business garbage sliding down THAT slippery slope and software patents have proven to be a decision whose negatives far outweigh the positives.

Re:Why SMALL businesses reject software patents

[rackhamh]

Sorry, I have been coding for over thirty years there is NO "invention" taking place in that process any more than a plumbers or carpenters solution to a tricky bathroom remodeling around a basement support pole is patentable. Solving these issues can be done by any competent practitioner, similar coding would be created by a majority of the programming community given a correctly defined problem. I.E. what we do is OBVIOUS and NOT patentable.

With all due respect to you, many of the inventors I meet with are frickin' geniuses, and most certainly do invent. Your characterization of coding does disrespect to those out there who are actually coming up with new and innovative software concepts.

Re:Why SMALL businesses reject software patents

[rackhamh]

No, it was the sound of you using an unsubstantiated comment on Wikipedia as your "evidence", and refusing to back it up when I called you on it.

Nice try.

Seriously, if you're going to point to a patent as evidence, point to the PATENT, not somebody's (probably ill-informed) opinion about it.

Re:Why SMALL businesses reject software patents

[arose]

Please tell me how any of this is unique to software patents.

Software business probably has the lowest barriers of entry of any patent sensitive field. One coder in his bedroom can be the entire company and still violate countless software patents wihout even knowing of their existance.

Re:Why SMALL businesses reject software patents

[arose]

Your naivety is scary. The problem isn't whether you can copy the idea -- it's whether you can actually COMPETE.

Why don't we simply outlaw anyone except Microsoft to produce software and be done with it?

Re:Why SMALL businesses reject software patents

[SmokedS]

You asked how software was different. I told you.
You then served a red herring about what type of software patent you claim is generally granted.
I stupidly let you redefine the discussion, but showed that even with that redefinition the problem remains the same.
You sidestep the relevant info once more, wanting now to talk about prior art.
Once more, I stupidly let you redefine the discussion but still I showed you that this argument is faulty too.
You now want to redefine the issue as being about some technicality about the specific patent in question.

This is call disingenuous rhetoric. Continually serving new red herrings, to conceal the fact that you cannot respond to a single one of my points.

Re:Why SMALL businesses reject software patents

[Anomalyst]

Au Contraire, I too am a frikin' genius, if IQ measurements mean anything (not much to me). Top 0.5% of the nation if you prefer that reference point, whoop-te-do. Little innovation out there and certainly none in the software patents granted to date, your attitude does disrespect to the millions of professionals who solve their work-a-day challenges without trying to soak the public at large every time they flush the toilet installed or open the door that was hung. I doubt they can manage to create something that is not using "methods and concepts" already detailed by Donald Knuth decades before, can you say prior art? Patents were originally for novel and original ARTIFACTS wherein a substantial amount of work over the course of months or years an INVENTOR (not some morally deficient business like the current HP or MS getting assignments for the trivial crap with which they flood and game the system) worked to get the pieces ready for manufacture and assembly and was rightly due a limited protection to re-coup on those efforts. Software qualifies for none of that. It is really quite simple if you can't kick it, you can't patent it. The current patent system and the way the corporate persons weasel around the true spirit and intent with "broad claims" with specifics sufficient to avoid only the most blatant prior art borders on criminal. If the system worked as concieved, patents would be truly valuble to the public, in reality they are an albatross about our neck, primarily benefitting the already rich, oh and the parasit^Wlawyers and rarely rewarding the true inventors.

Re:Why SMALL businesses reject software patents

[back_pages]

Sorry, I have been coding for over thirty years there is NO "invention" taking place in that process any more than a plumbers or carpenters solution to a tricky bathroom remodeling around a basement support pole is patentable. Solving these issues can be done by any competent practitioner, similar coding would be created by a majority of the programming community given a correctly defined problem. I.E. what we do is OBVIOUS and NOT patentable.

This may be true but this has nothing whatsoever to do with the term "obvious" in the US patent system.

"Novel" means that a single piece of prior art describes the invention. We're all on the same page here. There is incredible confusion about the term "obvious" in the US Patent system. It means that, at the very least, the invention is fully described in two or more pieces of prior art (plus some requirements that I'll skip for brevity). There is no "simplicity" aspect of "obvious" in this US Patent system.

"Obvious" in the US patent system only means that if you could combine two or more pieces of prior art, then the invention would not be "novel". It does not mean that "simple" inventions are unpatentable.

And you can read this for yourself straight from the USPTO's manual for patent examiners: MPEP 2143. I'm referring specifically to the third requirement at that link. The other two are important, but if you cannot find every piece of the invention in the prior art, then it is legally non-obvious. There is no such thing as a "simplicity" or "complexity" requirement.

In other words, according to law, if the plumber or the coder solved a routine problem with a solution (or a piece of a solution) that cannot be found in the prior art, that is an invention. Maybe he was the first programmer to horrifically abuse a loop iterator in that particular fashion. Hey, maybe it's a dumb invention, but if it's not in the prior art, it is an invention.

Now, as a separate topic, you might be completely right that this causes problems. However, the fault is not with the USPTO - they enforce law and policy as it is delivered to them, no matter how poorly understood that system is here on Slashdot. Whether this situation is good or bad I'm not going to entertain at length. I just want to point out that your conclusion, that plumbers and coders solving problems is "obvious", is not relevant to the definition of "obvious" in the patent system.

Re:Why SMALL businesses reject software patents

[Anomalyst]

fault is not with the USPTO

from MPEP 2142 http://www.bitlaw.com/source/mpep/2142.html

"The examiner bears the initial burden of factually supporting any prima facie conclusion of obviousness. If the examiner does not produce a prima facie case, the applicant is under no obligation to submit evidence of nonobviousness...the examiner must then make a determination whether the claimed invention "as a whole" would have been obvious at that time to that person."

At which they have failed miserably to date. If the MPEP is the rope of the upon which this dead and stinking albatross hangs from our necks, it needs to be changed. Because the majority of the current applications are for gaming the system and primarily to impede a competitor and/or build a defensive patent portfoliio to be bartered when accused of infringement by other weasals gaming the system. There is foul layer of "intent to deceive" underlying most of these players. There MUST be an assumption of obviousness and that an APPLICANT must present documentation showing a reasonable effort to research the absence of prior art for those aspects which they claim are novel. There should also be HEFTY PENALTIES (how about their last patent released to the public domain.) when that research is shown to be wilfully deficient.

In an ideal world, as concieved by our founding fathers, patents served a useful purpose for both the SMALL inventor and the public, it has not scaled well to todays flood of bogus concepts. Without a complete and total overhaul (unlikely) it no longer serves its intended purpose because it was predicated on honest and straight forward application submitted by inventors raised on a tradition of honor and ethics, both of which are usually lacking in the modern corporate person.

I am afraid that the analogy with plumbers and carpenters is still very much apropos, to a 'person of ordinary skill in the art' 'the claimed invention "as a whole" would have been obvious'. That rise/run is equally applicable in stairs as well as roofs or that it takes 4 elbow joints to route around an obstacle are (pardon the double negative) not non-obvious concepts.

Re:Why SMALL businesses reject software patents

[back_pages]

At which they have failed miserably to date.

First of all, you have misinterpreted the meaning of MPEP 2142. That section merely sets forth that the patent examiners have the initial burden of proof to reject a claim under 35 USC 103, and if that burden is not met, the applicant has no obligation to rebut a presumption of obviousness. This section has nothing at all to do with the rest of your post. But let's overlook that and return to your point.

At which they have failed miserably to date.

This statement only makes sense if we both agree to drastically misconstrue 60 years of legal precedent and completely rewrite 35 USC 103 for the purposes of discussion. People complain about judges rewriting the law from the bench, this is rewriting the law on the internet. To be perfectly clear, there is no legal basis to support your opinion. I really think you should be interested in the principles behind existing patent law. At the very least, it will help you form a more poignant critique of the patent system.

Because the majority of the current applications are for gaming the system and primarily to impede a competitor and/or build a defensive patent portfoliio to be bartered when accused of infringement by other weasals gaming the system. There is foul layer of "intent to deceive" underlying most of these players.

Oh really? The US patent office receives about 370,000 applications per year. Almost all applications are pending for more than 1 year. I've read that pendency ranges from about 1.5 to 3.5 years depending on technology. Saying there are 1 million pending patent applications is probably a safe ball park estimate. I'm not going to descend into hyperbole or colorful illustration, but I'm going to say that you have not got the slightest chance in hell of convincing me that "the majority of the current applications are for gaming the system".

The rest of this seems to be a tautology. A patent is a "right to exclude" others from practicing the invention. Therefore, arguing that a "right to exclude" is "primarily to impede a competitor" is not exactly mind blowing. Further, the fact that a patent is intellectual property (emphasis on property) makes it not too surprising that, like other assets, it would be used as leverage when accused of infringement. So I'm left wondering what this "intent to deceive" comment is based upon.

There MUST be an assumption of obviousness and that an APPLICANT must present documentation showing a reasonable effort to research the absence of prior art for those aspects which they claim are novel.

I disagree with this for so many reasons that I can't possibly describe them all in detail. Your statement still confounds the definition of "obviousness" in the patent system, and thereby implies an entirely new and unprecedented reason for rejecting an application. Getting past that, this suggestion clearly penalizes the independent inventor who struggles to afford legal counsel under the current system without paying for documentation and research of the prior art. Of course, this suggestion would simply create useless paper for the patent office to sift through because, surprise, NOBODY can find prior art for the OWN invention. Gosh, big shock.

And you might be surprised to know that if an inventor wants his application examined quicker, he can petition to make the application "special". One of the ways to do this is to pay for technology experts to research the prior art and turn over all their results (with summaries) to the patent office. In my entire career, I've heard of someone paying for this once, the examiner did not use any of the prior art that was provided, and the application was repeatedly rejected on the basis of different prior art. I think that a proposed rules change from the patent office is going to remove this route to "special" application because it's little more than a waste of time and money for everybody.

There should also be HEFTY PENALTIES (h

Welcome to Democracy

[ClamIAm]

I think it's safe to say most Slashdotters prefer a form of government where they have a voice, and this probably means most of us favor some form of liberal democracy. Well, Wendell Philips said it best when he described the price of liberty as "eternal vigilance". There will always be forces in the world trying to subvert liberty to serve their own ends, and this means that there must always be people who will stand up for what is right.

I realize this is kind of a sappy/idealistic post, but, um, I think there's some measure of truth here.

Re:Welcome to Democracy

[Shawn is an Asshole]

I can't for the life of me figure out what makes people hate software patents more than other types of patents...

For one thing, software already has copyright. Why does it also need patents?

Say I write a song with a I-IV-V progression. I have copyright on that song now. Should I also be able to patent the I-IV-V progression and begin suing everyone over it?

Re:Welcome to Democracy

[ClamIAm]

The fact that [poor people] have fewer resources for legal battles is a function of our economic system, not patent law specifically.

I don't see how a broken economic and legal system justifies patenting what are a cross between a mathematical formula and an instruction booklet.

Re:Welcome to Democracy

[rackhamh]

I don't see how a broken economic and legal system justifies patenting what are a cross between a mathematical formula and an instruction booklet.

I'm not sure I understand your analogy... so before I respond, can you please provide an example to clarify?

Re:Welcome to Democracy

[rackhamh]

What invention? Software is the implementation, just as a book is the implementation and nobody invents a book!

If you change the words of a book, you no longer have the same book. In that sense, a book merely implements itself. Not so with software. You can use a completely different code base, a completely different operating system, a completely different hardware base, and still arrive at the same result. That RESULT is the invention, i.e., the PURPOSE of the software. A book is not at all comparable, because the book IS ITS OWN purpose.

Re:Welcome to Democracy

[Bugmaster]

Because software inventions are closer to mechanical inventions, with modules analogous to moving parts, than they are to a piece of art or prose.

Shouldn't the INVENTION be protected, not just the specific implementation of the invention?

Actually, the patents on mechanical inventions do patent the specific implementation, and not the idea itself. You cannot patent the concept of converting flammable fuels into motive force, but you can patent a specific implementation of an internal combustion engine. Someone could then come along and patent a totally different implementation, and his patent would be as valid as yours.

Re:Welcome to Democracy

[rackhamh]

If you change the source code to a piece of software, you no longer have the same software.

But you have the same INVENTION. You are missing the entire point of software patents. Nobody wants to patent their specific code -- they want to patent the inventions that happen to be implemented in code.

Re:Welcome to Democracy

[rackhamh]

No, patents always covered the specific implementation of the idea, not the idea itself. That was why getting the claims right was important, because you had to make them as general as possible to cover minor variations, but were not supposed to be able to make them so general as to cover everything.

But software patents always amount to giving a monopoly on an idea, not an implementation of an idea.

Patents in ALL areas are as broad as the applicant can get away with. If you don't think mechanical patent applications also shoot for the moon, you're fooling yourself.

Your post also indicates that you have limited experience with software patents. Many software patents do end up being EXTREMELY narrow, due to the volume of prior art in certain fields. It all depends on what the Examiner comes up with.

Re:Welcome to Democracy

[rackhamh]

You cannot patent the concept of converting flammable fuels into motive force,

which is the same as saying you can't patent an algorithm

but you can patent a specific implementation of an internal combustion engine

which is the same as saying you can patent a specific use of an algorithm.

Your example is entirely consistent with software patents.

Re:Welcome to Democracy

[j. andrew rogers]

For one thing, software already has copyright. Why does it also need patents?

Non-software patents are no different and have the same relationship. You can get a copyright on the implementation design and a patent on the abstract design. Chemical process patents for example, which no one seems to care about, are entirely indistinguishable from software patents in this regard. The idea that software is somehow different on the basis of a copyright is a fallacy and obscures the real issue.

Which is not an argument in support of software patents, but an argument against the idea that software patents are a special case because they are not. Any argument that can be made against software patents can be made against other types of patents. Rather than arguing over a strawman, we should be debating the purpose and value of patents generally.

Re:Welcome to Democracy

[Waffle Iron]

I can't for the life of me figure out what makes people hate software patents more than other types of patents...

Most likely because you don't know anything about writing software. If you did, you'd understand how much patents are an incredibly poor fit as a tool to enhance the software industry.

Re:Welcome to Democracy

[rackhamh]

What inventions? We don't invent software, we develop it, solving the problems as we go.

You mean you don't come up with an invention before you start writing the code? Remind me never to use your software...

Re:Welcome to Democracy

[rackhamh]

Most likely because you don't know anything about writing software. If you did, you'd understand how much patents are an incredibly poor fit as a tool to enhance the software industry.

Or maybe I do have experience writing software, and just happen to disagree with you. Nah, that's impossible.

Re:Welcome to Democracy

[Waffle Iron]

There are plenty of people who have "experience" writing software and yet still don't know the first thing about it.

Re:Welcome to Democracy

[rackhamh]

There are plenty of people who have "experience" writing software and yet still don't know the first thing about it.

If you think that's true of me, then explain your point of view. I'm not just going to take your word for it that I don't know what I'm talking about, ya know? ;)

Re:Welcome to Democracy

[Anonymous Coward]

but you can patent a specific implementation of an internal combustion engine

which is the same as saying you can patent a specific use of an algorithm.

No it is not. It is the same as saying you can patent the implementation of an algorithm, which is already covered by copyright. use != implementation.

Why was the parent modded up at all? It is non-sensical.

Re:Welcome to Democracy

[rackhamh]

No it is not. It is the same as saying you can patent the implementation of an algorithm, which is already covered by copyright. use != implementation.

Look, you're still not getting it. Mechanical patents are no different from software patents. You patent as broadly as you can while getting around the prior art. Using your engine example, you wouldn't try to patent "a gizmo of type X connected to a doodad of type Y to form a combustible engine." You would try to patent "a gizmo and a doodad connected to form a combustible engine." You would only limit the invention to "type X" or "type Y" IF REQUIRED TO GET AROUND PRIOR ART. That's absolutely NO different from saying "a shopping cart module connected to a website to form an electronic purchasing interface." You only get into the details of the implementation if REQUIRED to.

Re:Welcome to Democracy

[Waffle Iron]

The reason that software and patents are a bad mix is basically cost of accounting. With physical goods, the burden of dealing with patents, licensing and royalties are compartmentalized along with each physical item. Since physical items in general can't be acquired for free or duplicated, there's already a financial transaction involved with each component that goes into a finished product. Any patent royalties are almost always built into that transaction, so the patent burden is confined and walled off as a problem that the component supplier deals with.

With software, there is no lower limit on the raw cost of components, the components can be replicated at will, and many more components are typically included in the final product. Even simple apps call libraries which in turn call other libraries which can end up using millions of different concepts. Any one of those concepts might potentially infringe on one of the millions of outstanding patent claims in force. There's really no easy way to match what's going on in a program against all of the outstanding patent claims, so almost nobody even tries. That makes the landscape into a legal minefield. Keeping track of the compliance of all that is a logistical nightmare, especially when so many business models behind software products involve distribution of free copies (not just OSS, but shareware, demo versions, ad-supported apps, etc.). It's hard enough to track copyright licenses between the author and user on something as ephemeral as software; having 3rd parties pop out of the woodwork demanding patent licenses makes things impossible. This problem shifts patents from being a probable positive factor for physcal goods to being a net drain when applied to software.

All these problems are compounded by the unique requirement for backwards compatibility in most software products. In physical products, a manufacturer can often just substitute different parts to work around patent problems with part of their products. OTOH, software is often stuck with few viable options once the marketplace has been seeded with a particular implementation. If this weren't so, then the patents on outmoded technologies like .GIF, VFAT filesystems, MP3, etc. wouldn't be such a burden. As it stands, the owners of patents over backwards compatibility simply use them as tools to build moats around their market share so they can sit back and collect tolls long after any intrinsic value of their patents has passed.

Re:Welcome to Democracy

[csirac]

You only get into the details of the implementation if REQUIRED to.

This approach is then a real problem. Do you really deserve to "own" the ideas in the patent you're writing? The second it's filed, how many real-world implementations out there are suddenly infringing because other developers had to follow similar logical processes to arrive at a solution that solves the same problem?

I can't help but think that the real innovators that advance technology in this world are disadvantaged, stifling progress - and that people benefiting from software patents who are irrelevant to technological progress are disproportionately advantaged.

Re:Welcome to Democracy

[KwKSilver]

Actaually, your arguments in this thread--taken at face value--make a powerful case to outlaw all patents. Thanks.

Re:Welcome to Democracy

[rackhamh]

This approach is then a real problem. Do you really deserve to "own" the ideas in the patent you're writing? The second it's filed, how many real-world implementations out there are suddenly infringing because other developers had to follow similar logical processes to arrive at a solution that solves the same problem?

Wow, you really don't understand patents, do you? If other implementations are already out there, it's called PRIOR ART, and the patent is INVALID.

I can't help but think that the real innovators that advance technology in this world are disadvantaged, stifling progress - and that people benefiting from software patents who are irrelevant to technological progress are disproportionately advantaged.

That's funny, considering the amount of money that large companies pour into technological research. But those companies hold patents, so they must be irrelevant to technological process. I see your point.

Re:Welcome to Democracy

[Bugmaster]

which is the same as saying you can patent a specific use of an algorithm.

No, it's not. When patenting mechanical devices, you really must itemize every single gear and doodad, and how they connect to each other, and what they do. You can't simply say, "I'm gonna burn some fuel and use the heat for energy" (or, "I'm gonna use bubble sort to sort stuff"), you must say exactly how your engine converts heat to motion with pistons, valves, and whatnot (or, you should be required submit your exact source code).

Now, these are the rules for mechanical patents. As other posters have pointed out, these rules aren't always followed, but that's a problem with enforcement, not with the rules themselves. Unfortunately, with software patents, it's the rules themselves that are broken, because you can basically patent pretty much any crazy idea that comes into your head, without any specific implementation attached to it.

Re:Welcome to Democracy

[Halo1]

You mean you don't come up with an invention before you start writing the code? Remind me never to use your software...

This is indeed a mental disconnect between most programmers and most proponents of software patents. Programmers in general do not feel they are "inventing" when solving the hundreds of problems when they are programming. Just like a writer doesn't feel he is inventing while solving logical problems in his plot, a mathematician when solving logical problems in his proofs, etc.

It's their basic job, and they realise that if all that problem solving becomes patentable subject matter (given that it's new/not obvious), they should in theory spend more time on figuring out whether anything they do is already patented than on programming, and more money on getting licenses than they can ever make selling their software (unless they are a huge company with tons of patents ready for cross licensing).

It's just not economically feasible, unless you feel that software development and distribution should be reserved to large companies with enough lawyers etc to afford the costs a software patent system imposes on software development businesses. Basically anyone with a computer, internet access and a basement can currently start and run a successful software development company.

I don't see this as a problem which requires more red tape in order to prevent that, nor do I see any problems in the current software development model which would be solved by software patents (unless you consider many small independent companies as a problem and consolidation as a solution).

Re:Welcome to Democracy

[Halo1]

Many software patents do end up being EXTREMELY narrow, due to the volume of prior art in certain fields. It all depends on what the Examiner comes up with.

Can you give an example of such an "EXTREMELY narrow" software patent? I haven't seen any yet. Of course, my definition of "EXTREMELY narrow" may differ from yours, but I'm still curious about what you consider to fulfill that condition.

Re:Welcome to Democracy

[KDR_11k]

NO. Patents protect the implementation and ONLY the implementation. That is the invention. By allowing only the implementation to be patented competitors can invent a new implementation that serves the same purpose and compete with you instead of you having a total monopoly over a section of the market. Never mind that this is necessary to limit the scope of patents and the possible abstraction present in the patent. After all, we'd be downright fucked if the MP3 patent applied to any way of compressing an audio file without notable loss in quality.

Re:Welcome to Democracy

[KDR_11k]

In theory it's the job of the patent office to determine if a claim is too broad and could possibly cover implementations the applicant didn't think of so the patent office could reject a patent if it found the claims to be overly broad even with no prior art. In practice of course everything gets rubberstamped.

Re:Welcome to Democracy

[KDR_11k]

You can take a car apart and look how that secret bit works but do the same with software and you probably have violated a law. Software doesn't really need patents because it's illegal to disassemble it to find out how that thoroughly researched secret bit works.

Re:Welcome to Democracy

[Obi-w00t]

Why did the parent get rated Insightful and Interesting, when it is clearly Offtopic? I'll agree the two existing moderations are correct, but you have to admit it has nothing to do with EU software patent debates.

Re:Welcome to Democracy

[csirac]

If other implementations are already out there, it's called PRIOR ART, and the patent is INVALID.

This still costs money to prove. Especially if you're talking about US companies suing in your own nation, the court costs awarded to a successful defense are generally a ceremonial detail (supposedly, typically, extracting your court fees from a foreign US company requires setting up legal action in the USA).

That's funny, considering the amount of money that large companies pour into technological research.

This has nothing to do with patents.

But those companies hold patents, so they must be irrelevant to technological process. I see your point.

Irrelevant.

Here's what Bill Gates told Microsoft employees in 1991:

"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...A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose."

(link)

And of interest:

Oracle Corporation opposes the patentability of software. The Company believes that existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments.

(link)

Re:Welcome to Democracy

[ClamIAm]

I'm not sure I understand your question... so before I respond, can you please provide some clarification?

Re:Welcome to Democracy

[ClamIAm]

[The parent comment] has nothing to do with EU software patent debates.

That's a matter of opinion.

PROTIP: Just because something isn't spelled out enough for your tiny little mind does not mean that it's offtopic.

Do as we say, not as we do...

[Anonymous Coward]

I want to know who would be liable for any losses due to the EPO's granting of patents against their mandate (the EPC).

If the EPO is not liable, then senior EPO staff or examiners must be personally liable because these (invalid) software patents are not issuing themselves. Perhaps that mister McCreevy (who is not a Microsoft sock-puppet) could contribute his personal wealth and spare time to the defense of the liable party.

If the EPO are not liable for their actions then why would a private company or individual be liable for patent infringement?

Hostile to small business?

[Large_Hippo]

"Software patents are generally considered to add to the legal costs of large enterprises, as well as creating a hostile legal environment for smaller software businesses and open source projects" By the Slashdot crowd, maybe. The latest research suggests that in the U.S., the barriers to entry and industry concentration of the software industry are no higher than they were in the time before software patents became prevalent. http://papers.ssrn.com/sol3/papers.cfm?abstract_id =926204 And besides, patents increase legal costs across _all_ industries. The reason we have them is they're still the best way we've figured out to reward companies and people who innovate, rather than just hoping the market allocates the rewards for us (and often letting the spoils instead go to whatever corporate megalith can spend the most marketing dollars or undercut the acutal innovators) In other words, if you're a small software provider and you've come up with a neat idea, you'd better hope that you can get patent protection, because nothing else is going to stop Microsoft from using your idea, cutting your price, and taking away customers with armies of marketroids.

Re:Hostile to small business?

[rackhamh]

... and that is why many IP cases are accepted on a contingency fee basis.

Remember, in the legal world, just because you can't afford it doesn't mean you won't find someone to take it on for you.

Re:Hostile to small business?

[Large_Hippo]

You're saying we should blindly take the word of Bill Gates over the empirical research of a professor? What is this, Bizarro Slashdot?

Re:Hostile to small business?

[rackhamh]

We author and sell software which is adequately protected by copyright.

Clearly you do not understand the difference between patents and copyright. Copyright merely covers a specific representation of an invention. Patents cover the fundamental nature of the invention itself. Can you imagine coming up with an amazing invention in Java, only to have Microsoft copy it in .NET? Good luck trying that one under copyright law.

Re:Hostile to small business?

[Anonymous Coward]

Empirical research which JUST DOESN'T SHOW that patents are in any way beneficial, only that, AT BEST, they've failed to be catastrophically bad! (note that "research" is only counting software startups, and I've got a sneaking suspicion its counting software patent troll startups AS "software startups" too. The two are not substitutable. Any company that employs (or retains) more lawyers than programmers is not a "software company"!).

See Lenz's take on the paper: http://k.lenz.name/LB/?p=10 -
And Kinsella's (in comments): http://271patent.blogspot.com/2006/09/have-patents -killed-software-industry.html

Wow, what a strong argument for patents: they have not harmed the software industry that much!

Re:Hostile to small business?

[Large_Hippo]

He didn't just look at startup numbers--you missed the concentration measures, which are based on total market share.
But you're right that you really can't draw any ironclad conclusions from this paper. The best summary I'd give would be to say that everyone predicted gloom and doom with software patents, and then it turned out patents likely impacted the software industry the same way they affected every other industry. Which is, on the whole, not that much except to shift some money away from larger businesses and into the hands of some combination of innovators and trolls. (They may also have helped some large companies squish smaller ones, but given the expense of litigation, large companies usually have far better means of squishing smaller ones)

Re:Hostile to small business?

[rackhamh]

Clearly you do not understand 91/250/EEC:

So just because the law is written a certain way, that means it's completely rational and correct?

I'll be sure to remind people of that the next time the DMCA comes up in discussion.

Can you imagine comming up with an amazing 'invention' in your latest novel, only to have another author write something similar in a completely different book? Personally, I'd be flattered.

Since when does flattery have anything to do with business interests???

Re:Hostile to small business?

[rackhamh]

The non-patentablity of software is enshrined in the EPC and supported by historical EPO documentation.
It's not just the law, it's the opinion of the majority and was the opinion of the patent office before a wealthy minority began trying to force a change.

In other words, "The majority agrees with me, therefore I am right."

Why don't you go do that if it makes you feel better about losing this argument!

Good counterargument.

Since when do hard working, ligitimate businesses object to a little healthy competition?

I'm sure most businesses don't object to healthy competition. But pitting a tiny software shop against a billionaire giant like Microsoft hardly qualifies as healthy.

Re:Hostile to small business?

[csirac]

I'm sure most businesses don't object to healthy competition. But pitting a tiny software shop against a billionaire giant like Microsoft hardly qualifies as healthy.

I have to wonder if you're just using hyperbole too much, or actually believe Microsoft is the biggest threat to small software companies...

In terms of dollars, employees, market cap... Microsoft is irrelevant in all but the most obscure software business discussions (i.e., mainstream desktop consumer apps). IBM grosses more in revenue in software services (IBM Global Services divison) alone than all of Microsoft put together!

Software businesses do NOT sell (m)any products that compete with anything microsoft has to offer. Microsoft is irrelevant.

Re:Hostile to small business?

[rackhamh]

I have to wonder if you're just using hyperbole too much, or actually believe Microsoft is the biggest threat to small software companies...

It's called an EXAMPLE. People are complaining about advantages to large businesses, and Microsoft is the largest business that immediately comes to mind.

You could just as easily substitute any number of other big players who hold lots of software patents.

Why don't you focus on the topic instead of nitpicking?

Re:Hostile to small business?

[csirac]

You could just as easily substitute any number of other big players who hold lots of software patents.

I've yet to see any software developers, and I know dozens, who actually think software patents are a good idea. Then you can weigh up the attitudes of Oracle, Microsoft, IBM - and a slew of other large companies, to find that their attitudes towards software patents is differing shades of apathy, annoyance, and outrage.

Why don't you focus on the topic instead of nitpicking?

Sure, but I'm not the one who brought up an irrelevant "example".

Amazing how money talks

[Jim in Buffalo]

When it comes to patent law, man, money doesn't just talk... it screams through a giant bullhorn. It amazes me just how much a group of lawmakers can be influenced to completely sell out the common people for the sake of a handful of billionaires.

You must be new here...

[It'sYerMam]

Since when has that been an issue?

Why everyone else should reject them...

[Burz]

The traditional western freedom to express anything in terms of mathematics.

Where so-called "intellectual property" leads us is nothing short of enclosure of the mind.

Hard to enforce. Fortunately

[Opportunist]

The best solution would be to simply disallow patenting software altogether. Software implementations are already covered by copyright, and that's about as much as there should be to keep competition running. The US have patentable software, and we've seen far too many instances where the system has been abused to patent ridiculous implementations for the sake of stifling competition.

And that's anything but free market!

Software is provably NOT patentable

[3seas]

http://wiki.ffii.org/IstTamaiEn

More details
http://threeseas.net/abstraction_physics.html

Also see:

http://developers.slashdot.org/article.pl?sid=06/0 9/21/2130243

but the most powerful force of human mentality is "Denial"
A matter of popular or promoted belief often having nothing to do with what honesty actually is.

Re:Software is provably NOT patentable

[3seas]

Interesting how you can create and manipulate abstractions, isn't it.

Now patent the process and try enforcing your man made and granted rights to cause everyone else to be .... not human.

Correction: Re "tiny tiny" fraction of employment

[csirac]

I meant engineers. In general, at least in Australia, overall more than half the workforce is employed by small business.

huh

[KwKSilver]

You work for a law firm--an "intellectual law" firm--writing patents.

So basically you are a flunky who makes a living from the patent industry. That explains your hysteria: terror. Wouldn't it be horrible if we were free to think? Don't think about it before asking your masters at the law firm.

Re:huh

[rackhamh]

So basically you are a flunky who makes a living from the patent industry.

Let me get this straight: if somebody writes code for 30 years, that makes them "experienced" and entitled to an opinion. But if I work for a law firm, that makes me a "flunky."

That's not only insulting, it's also absurd.

Eh,,,

[Barts_706]

Once in my life I felt proud to be Polish - it was when we blocked the issue of software patents.

It looks like we have won the battle, but the war will continue as long as there is overload of bureacracy in EU and moloch corporations to be lobbying.

Personally, being a Linux user (perhaps not the most advanced around, but at least trying) I shiver at the tought of software patents being introduced and what effect this might have on our distributions. No left-click, no double-click, no <insert_your_favourite_nix_feature_here>?

I do hope this issue will be bounced back again. For the sake of us all.

software patents

[falconwolf]

I can't for the life of me figure out what makes people hate software patents more than other types of patents...

I hate patenting software for two reasons:

• Software already enjoys legal protection, it's called copyrights.
• Software patents inhibit progress and doesn't encourage innovation or progress.

Say I come up with a nifty program that allows users to do X, so I market it. The next thing I know I get slapped with 1, or 2, or more lawsuits because several others had already patented a number of things I did in my program and I had never even knew never mind saw those patents or copied anyone's software, yet I combined these different things I came up with myself in one package. So I'm bankrupt now and have sworn off ever writing software programs again.

Falcon

protection against Microsoft

[falconwolf]

if you're a small software provider and you've come up with a neat idea, you'd better hope that you can get patent protection, because nothing else is going to stop Microsoft from using your idea, cutting your price, and taking away customers with armies of marketroids.

Yeah, like MS can't just take your idea and say "We've got billions of dollars in our war chest so go ahead and sue us. Even if perchance you win millions what they've spent in legal fees and awards to you will still be less than what they "earned". But how many have that kind of dough laying around to spend on lawyers?

No, patents won't stop anyone determined to rip you off.

Falcon

More infor from an European party against EPLA

[subsonic_boy]

Here you are: http://www.greens-efa.org/cms/default/dok/148/1484 90.eu_patent_law@en.htm

Re:Reversing the debate

[KDR_11k]

The last time they attempted to introduce software patents the anti-SW-patent groups managed to convince the politicians to change the law to the point where it explicitly forbade software patents. The pro-patent lobby reacted by making their politicians withdraw support for the directive and in the end nothing was passed.

Re:Welcome to Accounting.

[Waffle Iron]

So basically your argument against software patents is because you all can't handle the accounting?

No, it's because the cost of handling the accountanting is often more than the software is worth in the first place. So the software doesn't get produced, and the market is diminished. (And the patent holder doesn't even get paid for the software that didn't get written due to patent license burdens.)

Take the example of the .GIF patents. Unisys probably made no more than a few million dollars in royalties, but the cost and distractions of working around license problems with .GIFs surely cost the software and webhosting industries orders of magnitude more. It was a net drain on the economy.

prior art ...

[hany]

IMO, in case of stupid and/or obvious patents (like the one described by TheWoozle) prior art never prevents the patent from being granted nor does it ever allow it to be invalidated.

Why?

We're talking stupid and/or obvious patents here. Logic and logical arguments does not count.

:)