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Time To Abolish Software Patents?
gnujoshua writes "Has the time come to abolish software patents? Fortune columnist Roger Parloff reports on a new campaign called End Software Patents, which he views as 'attempting to ride a wave of corporate and judicial disenchantment with aspects of the current patent system.' Ryan Paul of Ars Technica writes that the purpose of the campaign is to 'educate the public and encourage grass-roots patent reform activism in order to promote effective legislative solutions to the software patent problem.' The campaign site is informative and targets many types of readers, and it includes a scholarship contest with a top prize of $10,000.00. We've recently discussed the potential legal re-examination of software patents."
What are the implications of abolishing software patents? Weigh the possible advantages and disadvantages against the (questionable) advantages and (severe) disadvantages of the current system.
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~ |rip/\/\aster /\/\onkey
You can bitch and moan all you want about software patents, but the problem is something else. It is the inability of "the little guy" to license patents in a way that doesn't cripple him, or make him subject to the whims of the patent holders.
When patents are easily and fairly licensed, the incentive to use them is increased, and the patent holder reaps the rewards of the increased usage. When they are kept locked down tight and only used as bargaining chips in patent wars, then no one benefits, not even the patent holder.
Patents should be freely licensable if the holder does not currently produce a product based upon the patent. The patent should be negotiable to any other third party who requires it, and it should be available at a reasonable price for reasonable terms. The only time a licensing request should be denied is in the case of gross misconduct of the licensee or if the licensee is a direct competitor to whom providing the patent would materially damage the patent holder. An arbitration agency should be in charge of deciding if a license denial is valid, and to decide if a particular patent holder is denying license requests too often.
It's only a month ago that Slashdot covered the UK's decision to not reject software patents "out of hand".
So, while software patents probably do need abolishing (or at the very least being converted to a proper patent that can then be implemented or described in software, rather than an algorithmic patent) I think we in the UK have a leadership that think otherwise and a populace who don't know much better and don't care unless it is in some reality TV show.
No, we haven't.
We've established that mathematics should not be patentable.
Oh, BTW: you probably meant "an exception to the rule that he who creates something novel should be rewarded".
Any other fields of endevour we should exempt? Not that anyone here doesn't have a personal stake in the outcome.Otherwise it just doesn't make sense, with or without Chewbacca.
Well, let's first see if patents even work as intended.
Ignore this signature. By order.
Your sarcasm is predicated on the assumption that the only way to be
rewarded for creation is by patent.
Here's a list to start you off
* Works of fiction
* Mathematical theorems
* Business methods
* Algorithms
* SOFTWARE
:
You make it sound like they lose all their protection for the software. That isn't the case. It will STILL be under a copyright.
And if something can be easily re-implemented (i.e. CSS/deCSS), then does it really deserve the ability to stifle all competitors like patents do ? Shouldn't the best software/best value be the winner instead of whomever got to the patent office first ?
Neither software nor should processes be copyrighted. How do you think the world would have been if Ford had patented the assembly line ? Do you think we would have been able to advance manufacturing if he had ? Do you think he would have licensed it to his competitors ?
UPS Sucks
The problem isn't software patents. The problem is actually business model patents masquerading as software patents. Another issue is that patent length is standard across industries, when it should vary based on the timescale of innovation. Seven years in software is an epoch; the same for pharmaceuticals would be about a third of the amount of time spent developing a drug.
But the mechanism by which one implements his invention shouldn't matter. The fact that the bar is too low is an entirely separate problem.
Yes there is, it's called copyright, and if you read GPL you can see how it works.
c++;
My worries stem from several things:
- Many companies have come to rely on software patents raising the barrier to entry for competitors. Software patents certainly can level the playing field because the size of a company has less to do with the defendability of a patent than you might think. Without software patents, a large company can "simply" throw a bunch of engineers at the problem and produce something similar very quickly. Is this better that the current software patent system?
- My small company currently has software patents pending. Our valuation and chance of obtaining funding depends on these patents. In today's post dotcom industry, it has become very hard to obtain funding on just an idea alone.
- If an abolishment somehow comes to fruition, what are the mechanics going to be? Like I mentioned, we have patents pending and have invested a substantial amount of money on lawyer and other patent fees. Are we going to get our money back? From whom? What if you already have a software patent? Will there be a refund?
Anyway, I think reform in patents is good but all these kinds of issues certainly need to be considered very carefully.What's nonsense is the claim that someone can have exclusive ownership over an idea or pattern. It creates a whole bunch of unintended consequences. I fail to see how legislation can fix that.
The problem isn't software patents per se, it's vague patents.
What's the worst that could happen if patents were abolished? Simple, inventors could refuse to invent stuff. So that tells you what should be patentable and what shouldn't be. If the "invention" is not something an inventor could prevent society from having by choosing not to invent it -- then it shouldn't be patentable. (Similarly, if the inventor could prevent society from having it, then it should be patentable.)
A patent is not a "grant" of rights, it is merely a recognition of a right the inventor already possesses, the right not to invent. Until the government gets it straight that governments don't "grant" rights, but rather recognize them, we will always have problems with patents.
(I checked Anonymous but my name still showed up in the preview...)
There are lots of things which can't be patented - mathematics, scientific discoveries[*], plot devices in novels or films, methods of trolling Slashdot. Why should software algorithms be an exception to the rule?
(* well, except for genes, but that's mad too IMO.)
In "Math You Can't Use", Ben Klemens makes the point that the software development market is divided almost evenly into three segments: retail, consulting, and in-house. Software patents as currently defined and enforced benefit the first group, retail, but hurt the other two because they do not have the same market dynamics at all.
Patents are an artificial market force created to prevent certain kinds of unfair practices in a centralized, controlled-distribution market. Applied to a decentralized and distributed market such as that for free and open source software, patents create the nightmare scenario of an exponential increase in legal exposure as developers build upon each other's work.
The answer, then, isn't to do away with patents, but to tweak them so they make economic sense again.
Here is Chapter 5 of "Math You Can't Use", and it is well worth reading.
I just purchased the book and am looking forward to reading the rest. A very interesting work.
"We receive as friendly that which agrees with, we resist with dislike that which opposes us" - Faraday
You can't patent music so why can you patent software? It seems very similar to me. All musicians use the same notes over an over again but it's how you order them that makes a song. Songs are copyrighted but not patented. So the same should hold for software in that programers can share the same tools (notes) and right completely different forms of software which should then be copyrighted but not patented.
Software is the new Hardware, so I don't think patents should be done away with as we move into this realm. But the duration needs an update to reflect the modern-day pace of innovation. I'd say that 17 months would be about right.
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Which makes perfect sense considering that nothing of any real consequence was accomplished in mathematics or computer science prior to 1980, when the US Patent Office was not considering software patentable.