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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."
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.
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.
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.
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.
Well lets say I made a compression algorithm that will lossless compress all data by 1/2 (Yes it is mathmatically impossible, I know) This a new and marvel method. I don't patent it. Microsoft sees it reverse engineeres it and makes their own version and sells it to make billions of dollars as well say Toshiba uses it in their HardDrive technology to double its disk space just with a firmware update, and use this to make an other billions... Now here I am trying to peddal a little WinZip like app where Microsoft and Toshiba has already made my App useless with the technology I created. I would say that I should get some compensation for my creation...
I am not against software patents. I am againt most of the software patents. Software patents in my mind need to be very inovative and considered something where people said you can't do this with that, type of mantality. But most of the patents are not new ideas or something non ovious. Most of them are cases where any good programmer would come up with that method when given the problem.
If something is so important that you feel the need to post it on the internet... It probably isn't that important.
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.)
Well lets say I made a compression algorithm that will lossless compress all data by 1/2 (Yes it is mathmatically impossible, I know) This a new and marvel method. I don't patent it.
Historically, mathematicians (as well as other people like scientists) have never been granted an monopoly on the use of the results of their research, and it's not clear why should that change?
As you acknowledge, it's mathematically impossible, so let's look at a more likely situation: you release your great new application, except big_company comes along and points out a range of other patents of theirs that you are infringing upon.
At best, you might be allowed to cross-licence if you have something they want - in which case, they use your "invention" anyway. Otherwise, you have to stop distributing your product altogether (and hope you don't get sued).
Even if we did accept your hypothetical scenerio - it's not clear that a world where hard drives everywhere have double space is worse than one where the only allowed application of this knowledge is your little app.
You're not thinking about the larger ecosystem in your assumption. You created an algorithm, in order to turn the algorithm into a viable product that you can release to market, you need to package it as an app. However, although your algorithm is indeed your own design, the GUI you create potentially impedes on several method patents. You get sued. In order to avoid the lawsuit, you drop the GUI and release a command line tool. However, the file I/O routines you use impede on several software patents. You get sued. That's the problem with software patents, they don't work well in a stack environment. I think copyright is the answer and has been all along. Remember, even if MS clean room reverse engineers your code, unless they can make their reimplementation significantly different from your original source code implementation, which should be impossible since your algo would be incredibly unique, they're still infringing on your copyright. This is the same problem cover bands face when releasing a CD of cover music. The original artist still gets their dues, even if only a passage from the song is used.
Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws-Plato
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
I can understand why people object to obvious patents, or to patents with not demonstrable implementation, but for all the whining people do about the evils of "software patents" I don't think people understand how similar the situation is with plain old mechanical patents. There are just as many bad patents on physical devices; why is the concern here only about software?
And as the parent suggests, I think a shorter term for software patents is a great idea. 17 months is probably a bit short -- I doubt many good ideas could make it from proof-of-concept to market in under 9-12 months, which doesn't leave a lot of protection time left on the patent. But certainly there's some single-digit number of years that would provide a workable balance.
For that matter I think the term of a patent could be variable in general. We'd want limits on the valid term range, but based on the patent type and things like regulatory barriers to market entry (for example in drugs, where drug X must get FDA approval which takes 2 years, but drug Generic-X can use the previous approval -- the government provides a barrier to market entry that is unique to the applicant and doesn't apply to other in the industry) we could certainly pick a more suitable term for almost all patents.
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.