Slashdot Mirror
Courts May Revisit Software Patents
An anonymous reader writes "It looks like the courts may finally be gearing up to overturn the ruling that opened the floodgates for both software and business model patents. It's been nearly ten years since the US courts decided that business methods were patentable and that most software could be patentable — and we've all seen what's happened since then. With all the efforts to fix the patent system lately, it appears that the court that originally made that decision may be regretting it, and has agreed to hear a new case that could overturn that ruling and restore some sanity to the patent system."
While I may not agree with software patents I can't agree with your argument, it seems analogous to "If you can't patent chemical elements then why should you be able to patent devices, as they are nothing more then chemical elements."
Hmmm, what exactly is NOT maths in this world? :)
"Give me six lines of C++ code written by the most competent programmer, and I will find enough in there to hang him."
Except for the EFF lawyers. Those are the only ones I would trust they will try to win this case.
And how about the lawyers of companies who have been hit severely by the current situation?
It's called greedy reductionism, or "nothing buttery". It's the first line of defense for reactionary or fanatical Slashdot trolls.
patent on devices ok, patent on the maths not ok. most of the software patents I've seen are on the maths not on the actual specific device. If you start putting patents on a general class of devices using the maths then your probably just patenting the maths.
thank God the internet isn't a human right.
Hmmm, what exactly is NOT maths in this world? :)
Patents are meant to cover a particular implementation in physical terms of a theoretical idea, and right now, they are often being used to try and cover the theory as well.
For example, my own pet hobby is working on a new way to factor large numbers. Let's say that my redneck republican self gets insanely lucky and bumbles into an algorithm that actually factors something in polynomial time, or even close enough to it so that RSA and the like are untenable. Since my approach depends on treating factor as a decision problem, it follows that if I did get really lucky and struck gold, that, it would be applicable to a wide range of other problems. Under today's law, patenting that would basically give me the right to apply that mathematical breakthrough for my own ends, when clearly, its in the interest of society that as many people should be allowed to exploit it. Basically, I would be allowed to charge money for any sort of an implementation of a combinatorial problem, which is absurd. Yes, I might theoretically build a billion dollar enterprise to milk this concept for all its worth, I would ultimately though screw everyone else with whom such a breakthrough might be useful, and damage the overall economy that many millions of times more.
Really, the dividing line is one of information and knowledge versus an actual real world device. As Jefferson so adroitly pointed out, information does not lose its value when it is copied. If I know something, and give that information to you, we both know something, and that doesn't hurt me that you know it. It does mean that I can't build some sort of an empire at your expense, but, given that we already went through the Catholic attempt, and then the various State attempts, to monopolize information, with disasterous results all the way around (and not a single success in 2000 years!), it is obvious that a social framework which allows information monopolies works to the disadvantage of mankind.
Quite ironically, those people whose livelihoods depend on information having value are the ones most arguing that information ought to be free. Patents are, in theory, today, supposed to protect IT workers and their inventions, but most GOOD IT workers these days remember that computer science as a field advanced even more before today's patent nuttiness. If we did anything, it would be to allow the shared discovery and utilitization of new techniques, but protect, if desired, commercial and open implementations. So, for example, if Microsoft invents a new GUI dongle, or on the flip side, someone invents a browser plugin, then, it would be better for everyone if you simply could not be sued for making your own implementation of that idea. That gives us a world where everyone's products can advance, we have IT for our customers and ourselves and leave the lawyers out, and everyone is happy.
It is really only the idiots at Wall Street, that have handed us the internet boom mess, the present mortgage mess and the previous S & L mess, that want to maximize every asset as much as possible with silly things like patents and create yet another bubble that will burst and screw the rest of us up. But really, Windows doesn't need any patents any more than Linux does. The value of both of those products is predicated on their overall customer experience, not some silly mining like claim staked out in Washington DC!
This is my sig.
Think of the people that LOSE money from patents. Think of all the companies that have been patent-blackmailed. Think about their lawyers spending months trying to get over some silly litigations. It really looks like a brake to innovation and business. I surely hope some part of the government will finally see it this way.
Saying that all lawyers support patent laws is a bit like saying that all programmers support buggy software because it gives them more work.
The Wise adapts himself to the world. The Fool adapts the world to himself. Therefore, all progress depends on the Fool.
It's been nearly ten years since the US courts decided that business methods were patentable and that most software could be patentable -- and we've all seen what's happened since then.
Since then we've seen the emergence of Google as a powerful challenger to Microsoft. This is one example among many of a company whose entire existence, much less its massive success, is dependent upon a patent (# 6285999, in Google's case). If Google had not been able to patent its major innovation, then Microsoft could easily have co-opted the idea, and it would have dominated search as well as operating systems and office suites. Recall that most of Microsoft's meteoric rise took place during a time when software was not patentable. The absence of software patents is precisely what makes "embrace, extend, extinguish" possible. Software patents give the original innovator the power to stop that strategy in its tracks.
I believe that what Slashdot readers truly dislike are bad patents, not software patents per se. Software just has more bad patents than it should because of the way the PTO treated them. Until the courts basically forced the PTO to accept software patents, the PTO did not hire computer scientists as patent examiners. Even now, the PTO has a massive backlog of software patent applications, and as a result computer related applications have by far the longest median time to issuance (roughly 44 months!). The PTO tends to err on the side of issuance, and so we end up with a flood of terrible software patents.
How to fix this? The simplest way is to eliminate the presumption that patents are valid, which requires a patent challenger to prove invalidity by clear and convincing evidence (a standard almost as high as beyond a reasonable doubt). Instead, we should recognize that many patents are not valid and end the presumption of validity. That way, bad patents can be more easily challenged, and patent trolls will think twice before bringing spurious suits.
Abolishing patents is not a good idea. It's the only thing that protects a small inventor from having his inventions stolen by anyone who has more money.
Patents do not stop that. Getting a patent is cheap enough, but defending it against a large competitor? You'd be forced into bankcruptcy in weeks.
There's a reason why large companies like patents so much - so they can use them as bargaining chips when they get sued for using other peopple patents (or simply countersue, if necessary). The small inventor has no foothold in this process and would just get steamrollered if they tried.
Why wouldn't the lawyers fight hard on both sides of the case? That's what they are paid to do. Court cases that shift around the boundaries of patent law do not hurt or help "the lawyers". It just changes where the fighting is but there will still be fighting.
For example, the recent KSR v. Teleflex case changed the rules on obviousness. That created lots of work. Suddenly there were new arguments to make in seeking new patents. There were also new arguments to make in invalidating old patents. Lots and lots of work.
The only way us patent lawyers would actually loose is if patents were outlawed.
I am a lawyer, but not yours. Anything I tell you might be a total lie intended to benefit my clients at your expense.