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."

Comments

Yes.

[pipatron]

Yes.

Re:Yes.

[s1d]

Finally.

Re:Yes.

[s1d]

True. The patent system needs to evolve with time. It may have been good when it was first created but now with so many new developments it has lost relevance in many fields, most notably computer software.

Re:Yes.

[zehaeva]

So long as Congress does not look at Patents and think "Hey! These are pretty much like Copyrights! Wait a second the lengths of these two very similarly purposed laws are quite different, by a significant factor. Lets just make them match up to which ever is longer. Fellow Congressmen and women I present to you the Sunny Bono Patent Reform Act of 2008!"

Yes the thought of Congress re-evaluating Patents with the situation as it is, is a very scary thought to me. Imagine if Patents were extended to life time of inventor + 70 years.

It is more than enough to keep you awake at night.

Re:Yes.

[The Great Pretender]

Yes, it's time to abolish software patents, but it's also time to stop all war. I don't like software patents, I don't like war. The companies owning software patents makes money, the global industrial-military complex makes money. Guess who's bigger with more political backing...good luck.

Re:Yes.

[hvm2hvm]

then how do you explain your signature? software patents are just a way of enforcing IP laws. i am against them but only because the way they are implemented right now, they do more harm than good.

Re:Yes.

[pipatron]

The way oil is treated now, it does more harm than good.

Re:Yes.

[anonieuweling]

http://www.killsoftwarepatents.com/

Re:Yes.

[w000t]

maybe offtopic... but troll?

Re:Yes.

[TekPolitik]

Yes.

I came up with different answers: hell yes; duuuh; no, it's way past time.

Re:Yes.

[gnupun]

Without patents, there is no point in spending tremendous time, money and effort creating something new because somebody else will steal it. Why bother studying for an university exam when you can simply copy from your neighbor?

Without patents there only be copycats, like 80-90% of OSS right now, all clones of commercial software with very little innovation.

Re:Yes.

[malaprohibita]

But there are mouths to feed! How will we feed the mouths???

Re:Yes.

[superwiz]

Without patents there only be copycats, like 80-90% of OSS right now, all clones of commercial software with very little innovation.

You must be joking. KDE is years ahead of anything else. fvwm desktop had virtual desktops when MS Windows was still struggling with the idea of a single desktop. These are not just technical innovations. These are innovations in how computers may be used.

I am all for software patents, but give OSS its due or I won't have a choice but to call you a hypocrate. The applications you must have in mind are Office and such. Well, ok those might have similar feel to them. But that's a very limited scope of what computers are used for today. C'mon, the only reason MS Monopoly is still not giving ground is lack of drivers for proprietory hardware on Linux.... man I am on a roll.

I think I am about to start a flame war with the opposite spectrum of slashdot than the one with which I was parrying in the morning. 2 wars: with the freedom-to-use and freedom-to-own camps. Both in the same article. I guess Slashdot editors decided to give people something to amuse themselves with this friday. What were they thinking with that question?

Re:Yes.

[gnasher719]

Without patents, there is no point in spending tremendous time, money and effort creating something new because somebody else will steal it. Why bother studying for an university exam when you can simply copy from your neighbor? In large parts of the industry, the attitude is: Keep your bloody inventions. Nobody wants them. Do you think Apple had to _steal_ to come up with the idea to give away vouchers at a coffee shop? (Someone claims they have a patent on that). Do you think someone needs to _steal_ the idea that a teacher can send a message to a student? (That is covered by patents). Do you think eBay had to _steal_ to come up with the idea of a "Buy me now" button?

Software is protected by copyright. You can't steal someone else's software. And the things that are patented, they don't take time, money and effort to create. What takes time, money and effort is the implementation. And the sad trend today is: Come up with a little idea. Write it down in the vaguest terms possible and get a patent. Then wait for someone to turn up with a successful product, make sure your vaguely written patent matches something they've done, and sue.

Re:Yes.

[falconwolf]

Without patents there only be copycats, like 80-90% of OSS right now, all clones of commercial software with very little innovation.

Much the same can be said of closed source proprietary software.

Falcon

Re:Yes.

[pipatron]

Oh noes, you got me there :/

Re:Yes.

[Anomolous Cowturd]

Muahaha, my sig is working. Any Latin geeks here wanna check the grammar for me, please?

Re:Yes.

[Anonymous Coward]

Geeko latino

Re:Yes.

[BBandCMKRNL]

For over 30 years copyright and trade secret worked just fine to protect software. We don't need software patents.

Now it's personal!

[Anonymous Coward]

Ok so we've established that software should be an exception to the rule that he who creates something novel shouldn't be rewarded. Any other fields of endevour we should exempt? Not that anyone here doesn't have a personal stake in the outcome.

Re:Now it's personal!

[DrLang21]

I personally don't have a problem with the concept of patenting software. And by software, I mean a full application. The biggest problem with software patents and the patent system as a whole is that you can patent bits and pieces of code/components. I say patent the product, not the product's components.

Re:Now it's personal!

[Anonymous Coward]

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
    :

Re:Now it's personal!

[somersault]

So then someone can come along, change 1% of the design and sell it as their own? I'm thinking of cars as usual. In software's case, the final product is protected by copyright rather than patents. Individual methods are protected by patents. AFAIK America only introduced software patents in the 90s and things have gone downhill over there since then.

Re:Now it's personal!

[Anonymous Coward]

I agree, very fundamental things in software should be left unpatentable (mathematical calculations, basic operations, etc.), but for the application as a whole, maybe it would be acceptable. Don't we have copyright for things like that though? Software is technically a "work of art".

Re:Now it's personal!

[harry666t]

I have three wishes. 1. that I had mod points 2. that there was a "Stupid Idea" moderation option 3. that I won't need to wish that #1 and #2 come true. How do you see it? Patenting a word processor? Even more stupid than patenting a blinking cursor. Patenting Word 2007? Hell, why anybody would want to? >,<

Re:Now it's personal!

[siddesu]

Well, in truth, since anyone else could do the same to the (ostensibly very large by that time) public domain source base, and since costs of adding 1% original code won't be as high as they are to duplicate a car, I doubt you'll see a lot of that done.

I'd expect a boom in online services as companies switch from copyright to trade secrets though ;)

Re:Now it's personal!

[jimmypw]

"AFAIK America only introduced software patents in the 90s and things have gone downhill over there since then"

In other news, SCO have become the richest company in the world By claiming the patent of granting a patent.

Re:Now it's personal!

[mdwh2]

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.)

Re:Now it's personal!

[Anonymous Coward]

Stallman for world leader!
Seriously.

Why is it that we can only dream of having people like that as our leaders, and we accept it as "reality" to go back to pushing for the ones we know are full of shit?

It's just so wrong, when you think about it. ./offtopic, redundant, whatever. It's friday, and I have beer.

Re:Now it's personal!

[Peaker]

How would they sell it as their own?
Recursively applying the same idea, the next guy will improve it by another 1% and sell it as his own and so forth.
Before you know it, hundreds of people are creating improvements for the benefit of society!

And all this, without using restrictions on society as an incentive? Sounds great to me.

Re:Now it's personal!

[schnikies79]

Because when it comes to world leaders there are things far higher on the list of importance than copyrights and patents.

With me, economics comes first, foreign policy second, social issues third, everything else in no particular order after that.

Re:Now it's personal!

[somersault]

I didn't say improve, I said change :p The moment a big company gets their paws on the idea they're going to be able to mass produce them a lot easier than any individual. Hand crafted stuff is often better quality, but the mass produced stuff is going to be cheaper and take the lion's share of the market. I think the original copyright and patent systems had it right, it's the stupid extensions that are causing issues here. It's not 'fair' if someone spends years inventing say a flying car, then GM buys one, reverse engineers it, puts a GM badge on it and claims it all as its own without paying any licensing fees. That's not much of an incentive to be an inventor IMO, though it benefits society if they have cheap flying cars (mainly because all the idiots will crash and burn I schpose)

Re:Now it's personal!

[pnewhook]

If you look at what a patent is really for, a software patent does not make any sense whatsoever. They should have never existed.

For something to be patentable, it has to meet the following crieteria: novel, non-obvious and useful. Software by itself is not useful as it doesn't do anything - it must have a computer or some other hardware devices attached to it to be the least bit useful at all. If you don't then you essentially have a work of material created by an author and this would then fall under copyright law, not patent law.

Software should only be patentable as part of a largert device that does something. So for example if someone created a novel GPS device, the unit and the software together can be patented as the unit as a whole is useful. The algorithm that someone created may be novel, but as a stand alone it is not useful.

Re:Now it's personal!

[deanlandolt]

There are lots of things which can't be patented - mathematics, scientific discoveries[*], plot devices in novels or films, methods of trolling Slashdot. Sadly, you, sir, are incorrect.

Re:Now it's personal!

[DrLang21]

You missed the point. I'm talking about patenting what the usable output of an application is. For example, the instant messanger. To the best of my knowledge, AOL was the first to come up with this back when AOL was a self contained piece of crap (though you might argue that IRC was the first place this was done, but I'm just trying to make a hypthetical example). They could have reasonably patented the instant messanger. However, it makes little sense to allow them to patent the methods they used to make the instant messanger work. To patent the "buddy list" (a list of frequent contacts made for ready access) would be retarded.

Re:Now it's personal!

[monxrtr]

That's fine, and that's the goal. The "how" isn't made available now anyways. The problem is people are patenting the "what", not the "how". Anybody should be able to copy or design their own "how" for any "what". This means there will always be service work for programmers, for customization. The ultimate incentive, for the productivity code delivers, doesn't disappear in the slightest with the removal of patents. If designers want to keep their methodology a secret, let them try -- it changes nothing from the way it already is with the patent system. Nobody (as in We the People) gets delivered to their mail, or sees posted, the ingredients or methodological steps for creating any product which was ever patented. You won't mass profit from any technological improvement without by definition trading it in some form, even obscured/hidden/scrambled, to others for money. No difference whatsoever, it what is already done with patent submissions anyway.

Re:Now it's personal!

[Peaker]

I agree it is possible that the only way to fund some inventions is with some kind of patent system.

Maybe developing a flying car is so expensive that it will be impossible to make a profit by being the first to have one.

My personal opinion is that patents are indeed not necessary in the general case, and that the you-get-to-sell-it-first is enough of a financial incentive.

Also, I think that if something is necessary, its probably not fully fledged patents but:

• Instead of disallowing use, production, etc as patents do, give some other exclusive right. For example, anything covered by the patent has to bear a trademark/ad or such as demanded by the original creator.
  
• A maximum price on patent licensing can be imposed as to allow everyone to reasonably use the patents (Tricky to define a reasonable maximum, but probably possible).
  
• Force patent creator to actually implement and reasonably sell/distribute every claim of the patent (again, set a maximum price here), or it becomes invalidated.
  

Re:Now it's personal!

[mdwh2]

Sadly, you, sir, are incorrect.

Blimey - I always hate it when I make analogies to something which must surely be obviously mad, only for that to end up happening too...

Re:Now it's personal!

[harry666t]

Patenting IM would be even more retarded. No Jabber, no ICQ, no MSNM, just because AIM was first? Heck, I thought nothing could be more stupid than USA's current patent system. I was wrong.

Re:Now it's personal!

[falconwolf]

I personally don't have a problem with the concept of patenting software. And by software, I mean a full application. The biggest problem with software patents and the patent system as a whole is that you can patent bits and pieces of code/components. I say patent the product, not the product's components.

So then a person can create a compeating product and be stopped from selling it?

Falcon

Re:Now it's personal!

[DrLang21]

Don't forget that this also prevents large corporations with money to throw around from just wiping out a small start-up business by underpricing them, out-marketing them, and out branding them. The patent system exists to protect and encourage innovation, not to stifle it. This is why the system needs fixed, as it no longer performs this function. As it stands now, innovation is being stifled because it's difficult to innovate without stepping on someone else's obscure and overly vague patent.

Re:Now it's personal!

[falconwolf]

Don't forget that this also prevents large corporations with money to throw around from just wiping out a small start-up business by underpricing them, out-marketing them, and out branding them.

Like Microsoft has never done any of this? Fact is is large corporations can and do get away with it because they can afford an army of lawyers to drag patent infringement lawsuits until the plaintiff is broke. Or if they eventually lose what they end up paying is chump change.

The patent system exists to protect and encourage innovation, not to stifle it. This is why the system needs fixed, as it no longer performs this function. As it stands now, innovation is being stifled because it's difficult to innovate without stepping on someone else's obscure and overly vague patent.

And how do you fix it?

Actually I have an idea I got from another /.er. Maybe what could be done is to have the patent term last only a few years, from when a product is released on the market and to stop patent trolls they'd have to release a product within a reasonable tyme period. Say make the term 5 years, then if the patent holder wants to extend it another year they would then pay a 1% royalty on sales. After 5 years the royalty would be 10% and in 10 year it would be 25%. The money paid could then be used to hire enough expert patent examiners to make sure it isn't obvious or in the public domain, there's no prior art.

However this would only apply to hardware and not to software. Software already has protection, it's called copyright.

Falcon

Re:Now it's personal!

[DrLang21]

Maybe what could be done is to have the patent term last only a few years, from when a product is released on the market and to stop patent trolls they'd have to release a product within a reasonable tyme period. Say make the term 5 years, then if the patent holder wants to extend it another year they would then pay a 1% royalty on sales. After 5 years the royalty would be 10% and in 10 year it would be 25%. The money paid could then be used to hire enough expert patent examiners to make sure it isn't obvious or in the public domain, there's no prior art.

I actually like this idea. It would also prevent universities from sitting on patents that they never intend to take to market. I have seen how university patents just sit and die in limbo because they just expect some company to buy up the patent or infringe on it without ever taking effort to put a product on the market (not that much different from a patent troll). I still believe there needs to be some form of patent protection for software, but certainly not for the code or methods themselves.

Yes.

[richie2000]

Actually, it's time to see if "regular" patents work as intended. If they don't we need to see if they can be fixed or if we have to get rid of them, and if so, if we should replace them with something else.

Weigh the options.

[TripMaster Monkey]

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.

Re:Weigh the options.

[jellomizer]

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.

Re:Weigh the options.

[CastrTroy]

The problem with software patents is that anything that's really novel, like your impossible compression algorithm is basically a mathematical algorithm. Since you can't patent mathematical algorithms, there shouldn't be any need for software patents. I'm not sure if I've ever seen anything really inventive in software that wasn't a mathematical algorithm. There's patents on things like one-click shopping, which aren't mathematical algorithms, but which aren't really all that novel either. And then there's patents that are inventive, like GIF compression, MP3 Compression and others, but which fall under the umbrella of mathematical algorithms.

Re:Weigh the options.

[mdwh2]

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.

Re:Weigh the options.

[molarmass192]

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.

Re:Weigh the options.

[TheLink]

I'm against patents and copyrights, if any they should last for a very short time, maybe 7 years at most. Patents don't work well nowadays- if we want a rapid pace of innovation.

Take the example of Douglas Engelbart - he and his team were really innovative. Do you think that it was patents that encouraged that innovation? I doubt it.

If you are as innovative as they were, you will be so far ahead of your time that any patents would have long expired by the time people "got it" ;). They made lots of stuff that people reinvented 20 to 30 years later. Even so, some of the stuff they made were already hinted at by people before them - e.g. Vannevar Bush.

Extending the lifespan of patents to benefit people like that won't work since it'll reward numerous patent trolls more than the very very few _real_ innovators. So the concept of patents is rather broken.

Patents are only good for people who can only come up with one good idea in a lifetime. Or for companies that enslave such people. I'm exaggerating a bit, but really.

There are lots of people who patent stuff even if they aren't good at implementing them.

Imagine if tennis/golf players went around patenting novel and effective moves. Even if someone copies the top players, they aren't a bunch of wusses and cry babies - they just try to be better.

The fact that many big legit companies patent stuff more as a defensive or bargaining measure indicates that it's pretty broken.

Patents slow the pace of progress and innovation. They might have been useful when things were really slow, but I think things are moving faster now.

I can come up with plenty of ideas, but the hard part is implementing and getting it to market.

Re:Weigh the options.

[Actually, I do RTFA]

Since you can't patent mathematical algorithms,

But you can patent using a mathematical algorithm to do something. I mean, at some level everything becomes a mathematical algorithim. The arrangement of chips to optimize [don't know enough specifics] is based on a mathematical algorithim.

So, the math behind GIF comprssion may not be patentable, but an image file format compressed in that way would be.

Re:Weigh the options.

[j. andrew rogers]

The problem with software patents is that anything that's really novel, like your impossible compression algorithm is basically a mathematical algorithm. Since you can't patent mathematical algorithms, there shouldn't be any need for software patents. I'm not sure if I've ever seen anything really inventive in software that wasn't a mathematical algorithm.

The problem is that all patents are mathematical algorithms, and as long as we continue to pretend this is not the case we will have people peddling non-solutions to the real problems. People who do not recognize this are not credible participants in the discussion of whether or not patents (of any type) should be abolished.

More generally though, algorithm patents are no more "patenting mathematics" than engine patents are "patenting thermodynamics". Your assertion is silly. The idea of "sorting" in computer science cannot be patented, but an implementation of the idea e.g. "bubblesort" can be, and the specific reduction to practice (e.g. your code) is protected by copyright. Same as with hardware patents or chemical process patents. No one is preventing you from inventing another algorithm to do "sorting" any more than a chemical process patent prevents you from inventing another synthesis path to some molecular end product. Saying that algorithm patents are "patenting mathematics" and other patents are not is a fallacy of modifying definitions in the middle of an argument to generate a particular outcome that comports with your desires.

Re:Weigh the options.

[Anonymous Coward]

> So, the math behind GIF comprssion may not be patentable, but an image file format compressed in that way would be.

Oddly enough, the situation was the complete opposite of that. The GIF standard was completely open, but the LZW compression method was patented, so you couldn't sell software that used LZW to compress GIFs without paying a royalty.

GIFs without LZW were unencumbered: http://www.daubnet.com/formats/GIF.html#EncoderStraight

Re:Weigh the options.

[mOdQuArK!]

See, you're looking at patents from the idea of "what would be 'fair' for me" in this situation. That's not really a good basis for deciding a system which is supposed to designed to increase innovation for the benefit of the overall society.

From the viewpoint of what's good for society, why should YOU be allowed to keep that neat new algorithm under your control when it would be much more beneficial to society if it got spread all over the place as quickly as possible and usable by everyone? A big company is going to be much better at that than you are, and it's not like THEY would be allowed to control that new algorithm either (so they'll have competition).

In addition, if one of Microsoft's engineers managed to work out the same algorithm on their own, why should you be able to stop them from using their own implementation?

The question is, can you come up with a system that encourages widespread dissemination of innovative & valuable ideas for use throughout society, while not discouraging "small" inventors from contributing to that idea pool?

(I've got a couple of ideas about that, but I"m interested in hearing what you might come up with.)

Re:Weigh the options.

[jez9999]

Aside from all the other posts criticzing your position, I'm just gonna point out that you wouldn't necessarily lose out; the SysInternals people created some good programs and MS paid them millions to buy them out instead of recreating their work.

Re:Weigh the options.

[sixpenny_83]

Well, under that theory then "method-patents" would be mathematical formulas too. You are generalizing mathematical algorithms too broadly. A method to produce tires.. a way that does it quicker is patentable. A formula.. An algorithm.. a set of instructions if you will.. on how to make a tire is patentable. This method makes Goodyear $$$ and it is well established that they can patent it. That being the case, an algorithm (a program) that takes in the numbers on the stock market and gives some useable result should also be patentable.

Software patents aren't the problem

[BadAnalogyGuy]

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.

Re:Software patents aren't the problem

[Anonymous Coward]

Which shoots 'free market' in the face worse than patents do now.

Unused patents should simply expire.

Re:Software patents aren't the problem

[sdiz]

why free market if it doesn't work as intended?

Re:Software patents aren't the problem

[Ed Avis]

The trouble is you are adding another layer of legal process and bureaucracy on top of an already convoluted system. Large firms will be happy to employ legal departments to play the game - to appeal at arbitration hearings, and spend time debating what is 'reasonable terms' in front of a judge. For small companies it's just one more obstacle.

You seem to assume the existence of wise, benevolent Solomonic figures who can fairly arbitrate these disputes and decide what is 'reasonable'. But past experience with the USPTO and EPO shows that those who are already supposed to police the system can't be trusted; they tend to be captured by special interests and just do whatever will increase the scope of their own powers.

Re:Software patents aren't the problem

[erlehmann]

The only time a licensing request should be denied is [...] if the licensee is a direct competitor [...]

With statements like this, I sometimes wonder if all the stifling of innovation through hindrance of competition in economics is just part of a bigger plot to prevent the singularity from happening all too soon.

Take that, Kurzweil !

Re:Software patents aren't the problem

[pipatron]

no one benefits, not even the patent holder

One might argue that the patent holder gains by vendor lock-in and monopoly.

Re:Software patents aren't the problem

[LinuxDon]

The problem is that software patents mostly patent ideas instead of ready to use building blocks.
Take the Blackberry/RIM case as an example, the other company just patented 'wireless e-mail' instead of a usable documented working prototype.

Thus: all kinds of theoretic or obvious ideas are being patented, just waiting for someone to build them and then sue the hell out of them.

Re:Software patents aren't the problem

[hitmark]

because history shows that every other system breaks down to, ones you bring humans into the mix.

we have a nasty habit of finding ways to "win" a system, any system...

Re:Software patents aren't the problem

[louks]

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.

I believe companies blocking 'direct competition licensing' would create as much litigation as infringement does now...

Case in point, isn't nearly everyone who could use the "Pinch Technology" a direct competitor?

Re:Software patents aren't the problem

[jmichaelg]

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.

Sorry, but that's plain bullshit. Patents exist for two reasons - lawyers and patent clerks make money off of them and large corporations use them as cudgels to beat off small competitors who will completely overturn the corporation's revenue stream.

Back when software patents were first being discussed by the PTO, it was clear that "the little guy" wasn't part of the issue at all. The San Jose Mercury was reporting on the hearings as they were held around the country "to solicit public input..." When the road show came to Silicon Valley, developer after developer after developer got up and spoke against them. Corporate lawyer after corporate lawyer after corporate lawyer spoke in favor. Well there was one exception - a developer who had written a piece of software that would show you what you looked like with different hair cuts. Even back then there was already prior art on that "invention." Somebody had written a mug shot package for the Mac that police departments used to help identify perps.

Towards the end of the hearing, a developer got up and pointed out how almost all the developers had spoken against the proposal and the lawyers had spoken for it. Bruce Lehman, the Patent Commissioner at the time and who was running that particular hearing, agreed with a smirk - he was a lawyer. You see who won out.

I've heard a very few good developers speak in favor of patents. Bill Atkinson comes to mind but he was speaking more in the abstract vs the reality. Most of the developers whom I've heard favor patents weren't very good as developers and therefore didn't realize that patents strike at the very core of what we do which is improvise on pre-existing ideas. The best software out there isn't the software with some unique, and hence patentable, feature. It's the software that melds the features into a coherent, consistent package that works intuitively. Doing that well is so damn hard that having to fight patent trolls and hack developers who claim feature "x" is their invention adds nothing.

Re:Software patents aren't the problem

[NickFortune]

You can bitch and moan all you want about software patents

Thank you. I can see where that is going to come in useful

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.

mmmm... Reasonable according to whom? Reasonable by what criteria?

Suppose you have a patent I want to licence and we decide a dollar a year is reasonable. Suppose you have a million? Is a million dollars a year still reasonable? And let's not forget that even a seedcorn licence would be enough to freeze out most of the free software projects going. A lot of people would see that as a Bad Thing.

Suppose I'm selling a product and my margins are just on break even. Then any extra overhead could be enough top break the company. Suppose you just drop ten thousand junk patents and a cease and desist order into the mix. To get back to making a profit, I still have to break those patents in court, which I probably won't have the money to do.

I think the problems of software patents run a lot deeper than the occasional lock-out strategy, and I don't think they'll be solved by creating price controls on patent licences.

Re:Software patents aren't the problem

[betterunixthanunix]

There is no way to fairly license software patents, because it is too easy to inadvertently infringe upon a software patent, without even realizing it. Consider, for example, a patent on virtual desktops (this is patented, IIRC). Now, you could easily ship a system with that functionality, without even realizing that's what you did; consider a person who is aware of the patent, ships a Linux system with only one VT and only single-workspace WMs, in an attempt to not infringe upon it. A user could, however, spawn a second X11 session, automatically creating a new VT, and thus infringing upon the patent.

The reason this is so easy is that software is like mathematics. Algorithms may arise inadvertently out of other algorithms, just like one mathematical system may inadvertently arise out of another (like the real numbers arising from pure set theory). If you cannot patent the pythagorean theorem, you should not be able to patent a system for compressing bitmapped images.

Re:Software patents aren't the problem

[Anonymous Coward]

equalivant would be guns do not kill people

people kill people.....

  or as Eddie Izzards says

    bullits kill People

Re:Software patents aren't the problem

[zehaeva]

Agreed, you should not be able to patent a design schema of a software system, you should have to build a working prototype. Patents should cover only producible/produced products. Not the imaginary ravings of some guy in his basement who thought "Wouldn't it be cool to have a wireless email system?" and run out and patent nothing more than a description of a system.

Re:Software patents aren't the problem

[Secrity]

"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."

The exact same thing could have been said in the late 19th and early 20th century. The Seldon patent crippled the ability of individuals to build cars, as did the RCA and AT&T patents on vacuum tubes, Bell's telephone patents, and the RCA radio patents. The courts ruled that the Seldon patent was not as mighty as all-inclusive as Seldon had claimed. The vacuum tube and radio patents were much more difficult to get around.

Re:Software patents aren't the problem

[CastrTroy]

I'm not really for software patents in any way, but in the case of lossy compression, there actually is quite a bit of invention that goes into it. When you get down to it, there's a lot of research into what you can cut out that people won't notice. I think that is the really invenvtive part. It's not really just inherent in the data. When you think about an MP3 file, they put a lot of research into discovering what parts of the sound you could cut out, without too many people noticing.

Re:Software patents aren't the problem

[orlanz]

You didn't write a lot, but I have multiple issues with your post.  (Please don't take it personal, a lot of ppl think along your post's lines, and I want to show the issue in it.)  When I say "IP", I am talking about software patents.

Terms - the following terms in the post are extremely vague and add only complications (read: dead weight cost, regulatory verbiage) to the overall system:
...easily and fairly licensed..., ...third party who requires it..., ...reasonable price for reasonable terms..., ...gross misconduct..., ...direct competitor..., ...materially damage...

How and who defines easily, fairly, reasonable, materially, misconduct, and requires.  The real issue here is that IP is vague in itself.  Its value is based on speculation, risks, and theoretical projections.  Of course the base value of IP is the quantifiable research + costs involved in creating, obtaining, and maintaining it (for simplicity's sake, lets skip NPV).  BUT, the base value alone only proves that the endeavor should have never taken place (why should I incur opportunity costs when there is no return?). You can't even being to talk about the above terms without defining the underlying value in question.  Of course there will be easy cases of what isn't fair, easy, material, etc. but these are few and the current system already takes care of it.

Forget third parties, the only parties that can even come close to determining that underlying value are the actual parties involved in the transaction.  And even these parties can never really come to a conclusion.  If the buyer is too profitable, the IP in question is actually worth more than estimated, else the value is worth less.  But by what quantity is still unknown (obviously not all of the profit/loss goes to the IP).  What the heavy weights have found is that the more vague the value of their IP is, the better.  Why?  Because that could be used to trade with other vague IP.  The more vague, the more the trading power.  This is why they see IP as defensive weapons, rather than offensive ones.

Only those who are projecting a loss in the market place or loss of the IP will truly risk evaluating (lower trading power) their IP through lawsuits and sell offs.  The current evaluation for patent trolls is: Base IP value = acquisition costs + lawsuit costs.  So for them, the IP is worthless if they can't find a settlement or win resulting in net gain.  If they win, their IP is worth more, but no one knows by how much.  At some point, it just ends up being a judgment call by a judge or one of the parties and this judgment expires the minute it is made.

If you can lock down the value of IP, then what the parent posts says is true.  BUT the current system would easily follow the above post if this could be done.

Other issues with the post, I will keep it short and add more if it raises a discussion:
...freely licensable ... does not currently produce a product ...
Well funded competition will bring a product to market, before the expense ridden, exhausted IP holder ramps up?  Which would result in useless IP.

...direct competitor to whom providing the patent would materially damage the patent holder....
Anything could be defined/made as materially damaging, depends on who has the higher paid lawyers and accountants.  Worse than not issuing IP to competition.  Cause now the owner has free research into what is profitable in the market that he might want to expand into.

...An arbitration agency should be in charge ... deciding ... decide ...
More regulation costs, raising the base cost of the IP.  Moving it away from the many, to the few.  And what are they going to do, impose fees, set licensing terms, or such.  The later makes it worthless, the former and anything else increases base cost.

In theory, the above post is great and I would love it, but in practice, it won't work.

Re:Software patents aren't the problem

[betterunixthanunix]

Actually, the MP3 stuff wasn't really innovative, because the parts of the sound spectrum that people wouldn't mind not hearing were known as early as the 1920s, and was used in the 1930s to save bandwidth on telephone lines. The real question was how to properly filter the file to compress it, without generating spurious sidebands and other artifacts.

Also, I was referring to the LZW compression in GIF ;).

Re:Software patents aren't the problem

[init100]

I agree that working implementations should be necessary, but that would mean that it can just as well be abolished, as a requirement for working implementations would narrow patents down to something that copyright already effectively is. Sure, it might have some additional powers, but not much.

Personally, I think that protection should be awarded for those tasks that demand a serious investment in time and/or money, and that is implementation of actual software. Thinking up an idea for a software project is easy, while the (correct) implementation of the idea into an actual software product is hard and time-consuming. Protection should be awarded for the latter, but not for the former, which effectively means that we should keep copyrights (although the details should be adjusted) and abolish software patents.

Re:Software patents aren't the problem

[jez9999]

The problem is that software patents mostly patent ideas instead of ready to use building blocks.

Indeed, and let us not forget Vonage having to pay Verizon a cool $120 million.

Re:Software patents aren't the problem

[Khalid]

Indeed as they say "Talk is cheap" :)

Re:Software patents aren't the problem

[gnasher719]

Take the Blackberry/RIM case as an example, the other company just patented 'wireless e-mail' instead of a usable documented working prototype. I think what actually happened there was two companies trying to get into the same market, both trying to develop products, both patenting ideas on the way, and one being financially successful, the other not. Since they both had patents, it was inevitable that each company got into conflict with the other parents. However, since only one company was successful (better product, better marketing, better luck, whatever reason), the successful company was sued. If RIM had lost the fight to the market, _they_ would have sued and won 500 million.

By the way, this case showed that not even having valid patents for your own inventions can protect you, if someone else has a valid patent on the same invention.

Re:Software patents aren't the problem

[gnasher719]

I've heard a very few good developers speak in favor of patents. Bill Atkinson comes to mind but he was speaking more in the abstract vs the reality. Bill Atkinson holds a patent for the implementation of regions in Quickdraw. If you ever looked at how he did it, then yes, his idea is very clever, absolutely not obvious, and quite efficient (especially in storage requirements). On the other hand, any decent programmer could easily implement regions in a different, less efficient way. For example, Windows uses regions in GDI under a different name, using a very straightforward implementation that is not covered by that patent.

The way things are going now, Atkinson would have a patent on restricting drawing operations to an arbitrary area, which would include clipping, alpha blending, flood fill, everything. With a good patent lawyer, Bill Atkinson would have a complete stranglehold on the whole industry.

Re:Software patents aren't the problem

[ScrewMaster]

For example, Windows uses regions in GDI under a different name, using a very straightforward implementation that is not covered by that patent.

No, they still call them regions. But you're right ... the lack of specificity (much less demonstrable functionality) is allowing software patents to cripple us. Meanwhile, countries without the dubious "protection" afforded by software patents are forging ahead. Oddly enough, their economies seem to be doing rather well in comparison.

Like copyright, a patent is a legal construct which (ideally) strikes a balance between the presumed need of the creator/inventor to make money, and the definite need of society to benefit from their efforts, in the long term. Also like copyright, patents have skewed too far in the direction of the rightsholder. That balance is what needs to be changed: the Founders did a pretty good job, and we wouldn't be in this mess if Congress had just left well enough alone. Instead, they made sweeping changes with profound and predictably negative effects.

copyright too..

[emj]

Isn't this a valid point? If we abolish copyright and patents there is no law or regulations that keeps me from stealing from poor OSS programmers. I can make as much profit as I want without ever having to give anything back..

Re:copyright too..

[pipatron]

Yes there is, it's called copyright, and if you read GPL you can see how it works.

Re:copyright too..

[harry666t]

1. software patents != copyright

2. abolishing COPYRIGHT, not PATENTS, would eventually mean that ALL the software will fall under a BSD-style license, which not only means free (but without copyleft ;/) but also means you can do whatever the fuck you want to to ANY piece of program in the world, including reverse engineering the hell out of anything, installing OS X on a non-Apple toaster, freely mixing Linux and leaked windows code, and so on. I would see it as a benefit. The OSS community and the open source / free software model is too powerful for any closed-source corporation (but maybe one) to stop, so simply forking a project and closing the source will mean the fork will die soon.

3. Abolishing copyright won't happen any time soon. *Maybe* if Stallman becomes the president.

Re:copyright too..

[pipatron]

Abolishing copyright won't happen any time soon. *Maybe* if Stallman becomes the president.

Stallman does not want to abolish copyright, the whole GPL relies on it to keep the source free. If he wanted "the other kind of free", he could already have chosen to use or change to a "BSD-style" license, or release everything to the public domain.

Re:copyright too..

[CastrTroy]

Abolishing copyright doesn't force anybody to release source code. That's the biggest problem with software. You get copyright protection. But even after your copyright runs out, nobody can benefit from your work, because they don't have the source code.

Re:copyright too..

[harry666t]

That's true, and sad. But at least nothing would hold you back from using a piece of software in whatever way you see fit. The Windows source has leaked years ago, once the OSS community would have it compile cleanly and got it working, I don't believe MS will stay in OS market too long (or they'll join us, having their only weapon against us destroyed).

Re:copyright too..

[Peaker]

You have a leap in your logic.
As one who opposes software copyrights, I use the GPL and not the BSD license.

As long as copyright exists, we use it, via the GPL, to prevent others from using it.
When copyright does not exist, the GPL is not necessary, and then the "BSD license"-style freedom takes place.

Choosing the BSD, rather than the GPL is the choice that reflects support of copyright -- it lets others use copyrights on derivatives of your work! If you do not support copyrights, disallow others from using copyright to restrict your software.

Those of us who oppose software copyrights are also pro-GPL, and I do believe Stallman is also in this crowd.

Re:copyright too..

[pipatron]

I don't understand what you mean by this. If I was a normal troll I'd say you don't know what you're talking about. Personally I don't like copyrights, but I do like the GPL. This is, however, illogical.

Richard Stallman wants everyone to be able to get the source to every computer program they run. He thinks this is very important, because without the source, you cannot modify the program, you can't learn from it, and you can't see what the program actually does. If you don't agree on this, then you won't agree with my next paragraph.

The only thing that stops $BIG_EVIL_COMPANY to take any GPLed open source project, add random proprietary changes to it, and release it without the new source code, is because if they do, they will break the GPL, and the GPL is only enforcible because of the copyright laws. Without the GPL, and in extension: the copyright law, they wouldn't have any obligation to release the source except for goodwill, and of course the other good things that comes with open source and free software. Some companies or individuals doesn't want or need those good things, and thus they oppose open source.

Of course, I'm not Stallman, and I know he doesn't like the current copyright system either, but completely removing copyrights without putting something else in as a replacement would be bad for free-as-in-libre software.

Re:copyright too..

[TeknoHog]

Before patents, businesses and inventors used secrecy instead of law to protect their IP. Patents are meant to encourage the publishing of inventions, while reserving _commercial_ rights for a limited time. Copyrights serve a similar purpose, even if their current form reflects something else.

Without copyright and GPL, businesses can take our code, improve on it, and release closed-source products.

However, things like GPL and CC are licenses. I'm pretty sure people can agree on terms of use even without copyrights and patents.

Re:copyright too..

[Dog-Cow]

The parent you replied to blindly and stupidly assumes that if copyright did not exist in Law that all software developers would magically decide to release the source. You and I know that if copyright Law were to be abolished, source code would be treated as Trade Secrets by those who don't currently believe in Free Software.

Re:copyright too..

[wild_berry]

It must be said that: without a right as an author to impose a licence upon people who trespass your right, you could not have the GPL. You may be able to make use of a contractual expression of the GPL (agreed by both parties upon their use/study/modification/dissemination of your work), but software codes disseminated under Public Domain/freeware licences cannot ensure that modifications are contributed back to the community for its benefit.

Re:copyright too..

[russotto]

You and I know that if copyright Law were to be abolished, source code would be treated as Trade Secrets by those who don't currently believe in Free Software.

Without copyright law, lack of source code is just an engineering problem. I've reverse-engineered some stuff from assembler to C by hand, and there are plenty of (probably patented) techniques for automating the process. Remove copyright law from the equation and anything interesting released as a binary blob will end up as reverse-engineered source soon enough.

Re:copyright too..

[Peaker]

The only thing that stops $BIG_EVIL_COMPANY to take any GPLed open source project, add random proprietary changes to it, and release it without the new source code, is because if they do, they will break the GPL, and the GPL is only enforcible because of the copyright laws. Without the GPL, and in extension: the copyright law, they wouldn't have any obligation to release the source except for goodwill, and of course the other good things that comes with open source and free software. Some companies or individuals doesn't want or need those good things, and thus they oppose open source.
Without copyrights, businesses that use dubious tactics like forking a piece of software into secrecy would financially fail, and all of their "secret modifications" would be reverse engineered and distributed freely. No, there's another thing that stops $BIG_EVIL_COMPANY from taking a GPLed open source project and modifying it -- lack of resources to do so.

Their financial overhead of developing using the closed-source model is currently offset by the financial gain based on copyright. When there is no longer financial gain due to copyright, this overhead will become unsustainable.

Those who try to close the source will simply be outdone by those that use the more efficient open source process. Don't tell me that this could happen already, because the difference is that now, closed-source companies have huge financial backing based on copyright which will simply disappear. Without billions of dollars Microsoft spend on their products, they would be completely unable to compete with their opensource competitors, which have spent a tiny fraction of that amount.

Additionally, in a copyright-free world, the problem will be a minor one. Instead of not having the source at all, you are merely forced to reverse engineer the software, after which you can distribute the changes freely.

Re:copyright too..

[pipatron]

Thank you. I had not thought about this scenario. However, if my memory serves me right, a lot of the companies that has been caught using modified GPLed software without honouring the license has been hardware companies, that use linux in order to get a free ride, but add support for their proprietary hardware. These would still have a lot of resources because they don't base their business on copyright.

Re:copyright too..

[TheRaven64]

If we abolish copyright and patents there is no law or regulations that keeps me from stealing from poor OSS programmers Yes there is, it's called copyright, and if you read GPL you can see how it works. How did a post which so obviously fails reading comprehension get moderated up?

Re:copyright too..

[Peaker]

Thank you. I had not thought about this scenario. However, if my memory serves me right, a lot of the companies that has been caught using modified GPLed software without honouring the license has been hardware companies, that use linux in order to get a free ride, but add support for their proprietary hardware. These would still have a lot of resources because they don't base their business on copyright. I agree, there would still be companies that can gain by closing the source.

However, reverse engineering will be possible. Having dealt with a bit of reverse engineering in the past as an educational hobby, I believe that the field of reverse engineering is highly underdeveloped. I believe this can be explained by the fact that reverse engineering for the purpose of generating usable source code is not very useful, in a world where it is illegal to distribute that source code.

If secret changes become a problem (as in the case of hardware makers), reverse engineering might solve it.

While I am generally in favor of abolishing software copyrights altogether, I acknowledge that I cannot be sure that the results of that would be a net positive. There are many unpredictable results of any large-scale change and indeed, abolishing software copyrights might have some negative consequences (as the one you mention).

I don't believe that the problems introduced by abolishing software copyrights would be serious, but if they turn out to be, there are many possible solutions. To solve the problem you mentioned:

• Disallow distribution of source-less binaries unless the source was truly lost (in effect, enforce the GPL as law, when applicable).

If some software still requires copyright-based profit incentive (I believe this is unlikely):

• Copyrights can be granted to source-code, not binaries. Copyrights given to encourage secrecy is an absurdity.
  
• Copyrights don't have terms, but have to be "bought" from society (possibly ahead of time), at an exponential price (exponent can be either time, number of copies sold or both). The formula should be tuned to encourage copyrights to last a few years only.
  
• Copyrights only apply to commercial/for-profit purposes.
  
• Patches to source code are not considered derivative works, allowing anyone to build upon the work of others, and in effect fork it, without diminishing the returns of the original copyright owner.
  

Re:copyright too..

[ucblockhead]

If there were no software copyrights, meaning that all software was essentially under a BSD license, forking a project would *not* necessarily cause it to die. For instance, someone could easily take Linux and base a proprietary OS on it. We know this, because this has happened with BSD-licensed OSes.

Abolishing copyright would mean that someone could take Stallman's software, modify it to their heart's content, and then sell the results without distributing the source. I suspect he'd not be too keen on that. One thing you need to think about is that just because you can't be legally barred from having the source does not mean that you'll be able to get it. Do you really think Apple will start distributing the OSX source to you just because you want to put it on a toaster?

Re:copyright too..

[harry666t]

What use will you have from keeping the source only for yourself when you cannot "sell" or "license" the software anymore? E.g. it's not mine, not yours, nor anybody's? If the company is not stupid, it'll release the source for their own (and community's) benefit. Most stupid things die quick.

Re:copyright too..

[ucblockhead]

If you are selling the binaries, you have a massive vested interest in hiding the source. Hell, even if you give the binaries away, you have a vested interest in hiding the source to keep it from your competitors.

Cure worse than disease

[walruz]

Abolition of Software Patents is just plainly nonsense. Not only because companies will madly lobby to destroy any attempt to do so, but because it's not fair for the rightful owners of software patents who developed software (NOT patent trolls).

We all know the answer, there should be some kind of legislation or law (IANAL) that should enforce patent owners to
a) keep developing software based on the patent, not just earn royalties
b) be rightful creators, or earn the patents on a company merge
c) be a real company, not just some patent troll
Where a, b & c should be all true.

My 2c,
W

Re:Cure worse than disease

[SirGeek]

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 ?

Re:Cure worse than disease

[darjen]

Abolition of Software Patents is just plainly nonsense.

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.

Re:Cure worse than disease

[morgan_greywolf]

Not only because companies will madly lobby to destroy any attempt to do so Actually, I think many of the biggest companies actually would be in favor of abolishing software patents at this point. Many patents are filed for an attained simply to use as ammunition in case a company gets legally attacked by competitors. It's kind of like nuclear weapons. What we have is mutually assured destruction -- okay, you sue me, so I'm now gonna sue you. Patent trolls exist precisely because they can't be countersued for patent infringement -- they have no product, so they can't possibly be countersued for patent infringement.

Re:Cure worse than disease

[CastrTroy]

My biggest problem with software patents is that most of the don't provide a working model. If you want to patent the software, you should have to provide all the source code with the patent that shows your "invention" working. I don't like how software gets 3 kinds of legal protection where anything else in the world only gets one. With software you get trade secrets, because you never have to release your source code. You also get copyright, so the relased binaries (or source code if you choose to release it) can't be copied unless specific permission is given. You also get patent protection. No other thing produce by people gets so much legal protection. My biggest problem with software patents is that they are mostly given on trivial inventions, where any skilled developer faced with the same problem would come up with a very similar solution.

Re:Cure worse than disease

[Anonymous Coward]

In EU there are no SW patents. I can clean my.. well you know what, with claims of M$ that I should implement the ribbon the way they do, or that I cannot implement a start menu (yes, KDE and Gnome are probably in violation).

It's not hard to imagine a world without them.

Re:Cure worse than disease

[evilviper]

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 ?

It's pretty easy to "re-implement" newly developed pharmaceutical drugs as well...

The cost of development of both drugs and mathematical concepts (software) can be extremely high. And if you don't give companies the options of patents to protect their developments, you can immediately say goodbye to all open standards and scientific sharing. It'll all instantly switch to undocumented and obfusticated binary-only code. And since reverse engineering is simply too easy, the only workable model will be to create a new product with the advent of each incremental improvement they come up with. The cost of developing something advanced like H.264 can't exactly be covered by selling support books...

How do you think the world would have been if Ford had patented the assembly line ?

How do you think the world would have been if the Wright brothers had patented the airplane?

Oh, that's right, they did... Not only did their patents NOT drag the industry down, it spurred the development of alternate ways to achieve flight, which soon after gave us the methods we know and use today... That nice new Boeing 787 doesn't exactly use "wing warping" now does it?

And I should point out that DVD-CSS is NOT patented, and the assembly line no doubt would not have been unique enough to be patented, or at least would have had more than enough prior art in slaughter houses to invalidate it quickly.

Re:Cure worse than disease

[mdwh2]

Abolition of Software Patents is just plainly nonsense. Not only because companies will madly lobby to destroy any attempt to do so, but because it's not fair for the rightful owners of software patents who developed software

This is why no software companies dare to trade in that unfair place known as Europe - however do they cope without software patents? It's just plain nonsense!

Re:Cure worse than disease

[renoX]

>Abolition of Software Patents is just plainly nonsense.

[sarcasm] Of course as the fact there software patents do not exist in Europe show that a society couldn't live without software patents: clearly there is no software producer in Europe [/sarcasm]

Granted there are probably more software producer in the USA than in Europe, but this was already the case before SW patents were thought as valid by the courts, AFAIK no study has shown in increase in SW developments thanks to patent.

Re:Cure worse than disease

[NickFortune]

The cost of development of both drugs and mathematical concepts (software) can be extremely high.

Right. Because developing a new theorem requires millions of dollars worth of industrial equipment as well as years and years of double blind testing before the regulators will let anyone use it.

Funny how people keep forgetting about that.

Re:Cure worse than disease

[evilviper]

"developing a new theorem" does not require "millions of dollars" but it is, still, very expensive, and results in completely original results.

Look into the cost of developing H.264 for yourself rather than passive aggressively making an ass of yourself.

Re:Cure worse than disease

[Anonymous Coward]

First you say,

My biggest problem with software patents is that most of the don't provide a working model.

Later you say,

My biggest problem with software patents is that they are mostly given on trivial inventions, where any skilled developer faced with the same problem would come up with a very similar solution.

Well, I guess anyone can change their mind. At least the second one parses. :)

Re:Cure worse than disease

[Temujin_12]

I'm torn when it comes to software patents. Inventors need to have a LIMITED amount of time in which they can exclusively profit on their ideas. Without this, the only ones who would profit from invention would be those who can throw the most engineers at the idea (read M$). While I love open source, it simply doesn't work for all business models and I think it is a bit hypocritical to evangelize choice and freedom while seeking to deny the right one has to not share. I see nothing wrong in software that is only obtainable via purchase. However, I do believe the current patent system is fundamentally broken.

The way I see it, the patent system needs to be based on a series of rules derived from game theory with the players being government, inventors, industry. The trick in this is to structure the rules (laws) such that thing like patent trolling, extended patent life, and patent infringement are financially unprofitable for all players. I am not a patent lawyer, so I don't know how much of this (if any) is already in place but just not working.

Government:
Obviously their role is to be the referee in the game. The government should be encouraged to grant patents and protect them by collecting fees for filings. I see government as, in a way, investing in inventors by promising to protect their ideas for a LIMITED AMOUNT OF TIME in the courts. Not by providing lawyers, but buy providing the system (courts patent offices). However, the government also needs to be liable for approving patents that are invalid (ie: trivial, pre-existing, or filed by those who aren't in turn investing in the idea themselves). A way to do this may be to somehow fine government and inventors when a particular patent is deemed invalid. This would provide the checks and balances for the government to both encourage them to grant patents, but not to grant every patent.

Inventors:
Inventors must be able to profit from their ideas (EXCLUSIVELY FOR A LIMITED AMOUNT OF TIME) but should also be REQUIRED to invest in their idea themselves. Patent filing should also include a plan of investment which if not met either causes fines or forfeiture of the patent. The requirement for inventor investment should be handled on a case by case basis (ie: large companies can (should?) invest more than a smaller one). This system may need to provide a means of patent extension (people will underestimate the investment needed to develop the idea) but such extensions should be very limited (no perpetual extensions) and should be financially burdensome to discourage inventors from extending unless they really feel they can profit from the extension. Also, such extensions could (should?) be coupled with an increase in investment requirements (again making it financially impossible for patent trolls to exist).

Industry:
The industry obviously wants patents to enter public domain as quickly as possible (so they can profit from it). They also want to protect their own ideas as well as prevent their competitiors from filing invalid patents. However, they should not be able to profit off of their competition's ideas during the LIMITED PATENT PERIOD. When a patent is filed, there should be a period of open peer review where the industry involved in the patent can provide feedback to the patent office about the validity of the patent. The patent office is not bound by such feedback but it is merely a resource for them to understand the indusrty as it pertains to this idea and would allow them to more quickly determine whether a patent is valid or not.

This is by no means a complete idea and I'm sure it is riddled with loop holes. However, I belive my main points are valid:

1. Using a game theory approach to get the 3 parties to play off of each other seems to be the way to go
2. Patent trolling needs to be fundamentally unprofitiable
3. Patents must have reasonable limited periods then go to public domain
4. Inventors must financially invest in their idea or risk losing the patent for it

Re:Cure worse than disease

[geminidomino]

It's not hard to imagine a world without them. Let it go on long enough, and it will be.

Re:Cure worse than disease

[orlanz]

But now you are getting into a dangerous topic: Patenting Math.

The Brothers should have been able to patent the airplane, and the wing design, but should they be allowed to patent "thing that flies" or "vertical lift". Should the concept behind limit theory in Calculus, Newton's Laws, String theory, BigNum primality, or H.264 be sanctioned as controlled by an singled entity?

Even if they did do the research and spend massive amounts of money and time.

Re:Cure worse than disease

[init100]

And if you don't give companies the options of patents to protect their developments, you can immediately say goodbye to all open standards and scientific sharing.

Except that open standards and scientific sharing still flourishes where there are no software patents.

Oh, that's right, they did... Not only did their patents NOT drag the industry down, it spurred the development of alternate ways to achieve flight, which soon after gave us the methods we know and use today... That nice new Boeing 787 doesn't exactly use "wing warping" now does it?

Compared to the time since the first powered human flight, patent terms are short. There has been plenty of time to use the previously patented methods of the Wrights Brothers. And besides, they probably didn't patent their invention in the entire world, so competitors could just go to another country to freely use their patented inventions.

Compare that with software and patents. Patent term lengths are 20 years, which is more than a lifetime in the computer world. Think about computing 20 years ago, what a difference. The internet has been mainstream for less than 15 years. And today, it is much more common to acquire patents in the entire developed world, so going to another country to escape a patent isn't so much an option anymore.

Re:Cure worse than disease

[evilviper]

Except that open standards and scientific sharing still flourishes where there are no software patents.

That is the case only because they can (and do) earn money off the software patents they file in other countries (the USA and Japan). It's a big enough market that it can prop up development in other countries, but it remains a prisoner's dilemma...

Should the USA decide to abolish software patents, things are going to quickly get very ugly.

Think about computing 20 years ago, what a difference.

Back then we merely had MPEG-1. But now, we're all the way up to 4. What a time to be alive.

Back then we merely had X11 for displaying graphics on our Unix systems... We must be up to X37 by now, right? And surely no one uses Unix systems any longer.

But in all seriousness, I don't object at all to significantly shortening the term of software patents. I do, however, find all arguments for completely abolishing them, entirely irrational, and borne from ignorance. Nobody bothers to offer any alternative system, it's just a bunch of reactionary whining.

Re:Cure worse than disease

[init100]

I do, however, find all arguments for completely abolishing them, entirely irrational, and borne from ignorance. Nobody bothers to offer any alternative system, it's just a bunch of reactionary whining.

For me it's the opposite, I find all arguments in favor of software patents irrational and emotional. All rational arguments are heavily against software patents. This isn't just from a few geeks whining on Slashdot. Many knowledgeable economists, researchers, businesspeople, software developers, etc, strongly disfavor the patentability of software and business methods.

Re:Cure worse than disease

[jez9999]

The cost of development of both drugs and mathematical concepts (software) can be extremely high. And if you don't give companies the options of patents to protect their developments, you can immediately say goodbye to all open standards and scientific sharing. It'll all instantly switch to undocumented and obfusticated binary-only code.

Organizations that support patents:
MS - MS Office (binary-only)
Adobe - Adobe Photoshop (binary-only)

And ones that oppose them:
Ubuntu - Linux (OSS, Free)
Apache - http daemon (OSS, Free)

QED.

Re:Cure worse than disease

[steelfood]

The cost of development of both drugs and mathematical concepts (software) can be extremely high. And if you don't give companies the options of patents to protect their developments, you can immediately say goodbye to all open standards and scientific sharing. It'll all instantly switch to undocumented and obfusticated binary-only code. And since reverse engineering is simply too easy, the only workable model will be to create a new product with the advent of each incremental improvement they come up with. The cost of developing something advanced like H.264 can't exactly be covered by selling support books... I don't know why you were modded insightful, because it's clear you have no clue as to how patents affect society. The whole, "innovation will stop without patents" is a bullshit argument, and for two main reasons.

First, most software patents cover ideas that are trivial to implement. They might be novel in the sense that nobody's ever thought of it before, but that just means that nobody's actually gone ahead and implemented the idea, as opposed to nobodying having the idea. So no, it doesn't difficult to come up with new ideas in software.

And open standards are only open because they're either not patent-encumbered, or the patent holders have a written agreement not to charge for using their patents in the context of the standard. Patents are detrimental to open anything.

Second, do you really think the world will stop innovating without patents? Do you seriously, honestly think people will stop trying to one-up the competition without patents? The abolishment of sofware patents will not change the software industry. People won't stop adding features to the next version of their software because they don't have a patent on the feature. Mathematical algorithms currently patentable will be hidden behind trade secrets. Which, if you pay attention, companies already do.

Even if we did away with patents (and I'm not saying we should), innovation won't stop. People will just hide behind trade secrets, which they do already. There might be less incentive to innovate, and at worst, progress may slow down. But that's negligable in the long run. On the other hand, an overly restrictive patent system like one where processes can be patented won't just slow down innovation, it can potentially stop it dead in its tracks.

As for the pharmaceutical industry, it can go screw itself. If companies won't do research once formulas are no longer patentable, then someone else will. For example, universities and academics, where the majority of medical research was originally done. And instead of the companies getting huge federal grants to do the research, the universities will. Better yet, because pharmaceutical companies are very selective about the medical maladies they research cures for, and they absolute refuse to put money into the rare diseases and disorders because it won't net them a profit, giving the universities the money and resources would result in treatments for even the most obscure problems, because somebody in academia will be interested in it, and that interest would be incentive enough to do the research.

How do you think the world would have been if the Wright brothers had patented the airplane? An airplane is an object, a novel invention. The assembly line is a process. You're comparing apples to oranges. Regardless of whether there might have been prior art or not, seriously consider if Ford had really patented the process of construction using an assembly line. They would've still been fighting WWII on horse and foot, because the infrastructure to quickly build and deploy machines would have only been in its infancy during the start of the war. Or, perhaps Germany would have ignored the patent during WWI, resulting in their victory due to being able to outproduce the rest of Europe. It may largely be speculation on my part, but such drastic social differences are what results when processes, methods, algorithms are patentable.

Re:Cure worse than disease

[NickFortune]

"developing a new theorem" does not require "millions of dollars"

Right. And neither does it require the significant prior investment in research equipment. A new drug may need cryogenic storage, the electron microscopes, and probably a whole load of esoteric and expensive equipment I've never heard of. Most mathematical discoveries can be worked out with nothing more than a pencil and paper.

Similarly, if a mathematician gets his theorem wrong, it rarely if ever proves fatal. There are no complex expensive government mandated acceptance procedures for new math. This is not the case for drugs.

And while I will grant that the occasional mathematical development can be expensive in computer time or brain power, these same overheads apply to the pharmaceutical industry, as well as overheads in infrastructure.

So I can't see the two cases as being equivalent. Personally, if I was going to accuse people of making assess of themselves, I wouldn't be so keen to conflate the two on such flimsy support. But maybe that's just me.

As for "passive aggressive", do you remember writing this?

How do you think the world would have been if the Wright brothers had patented the airplane?

Oh, that's right, they did...

So.... what? it's different when it's you doing it? Help me out here.

Re:Cure worse than disease

[mdfst13]

It's pretty easy to "re-implement" newly developed pharmaceutical drugs as well... The differences between pharmaceuticals and software include:

1. Pharmaceuticals are only covered by patent; software is also covered by copyright. With pharmaceuticals, the only protection that a company has against another company copying their drug is the patent. That's why there is a flourishing generics market. By contrast, software binaries are covered by copyright.

2. If a company comes up with a new drug that has the same effect as an existing drug, it's not covered by the pharmaceutical patent. See Cialis and Levitra as examples of this (both are primarily billed for the same problem as Viagra). Software patents are generally applied to others with the same idea rather than the same implementation (implementation is already covered under copyright, so patenting it is somewhat redundant).

3. Pharmaceuticals require clinical trials to be sold. These clinical trials are the majority of the cost of pharmaceutical development. Software seldom has the same level of testing requirements, and when it does, software is covered by copyright. A reimplementation that evades copyright would also require new testing (in the same way that Cialis and Levitra required separate testing from Viagra).

I would be fine with a software patent that was strictly limited to a specific implementation. However, such a patent is almost entirely redundant to the existing copyright protection. It's just as expensive (if not more expensive) to reverse engineer software as it is to write it new. In writing new, you only need to understand how what you wrote works; in reverse engineering, you need to understand how what they wrote works and how what you wrote works (and some way of verifying that those are the same).

In terms of pharmaceuticals, I actually think that the correct thing would be to rename the protection from patent to copyright. The pharmaceutical copyright could work as follows:

1. Some entity registers the copyright for a drug recipe's application to a specific problem. That registration requires a clear plan for starting clinical trials within one year.

2. That application is protected by copyright throughout the clinical trial period. If the clinical trials need to be extended for further investigation, then the protection extends as well.

3. Once the clinical trials complete and the FDA signs off, the copyright protection will last for seven to ten years (about the length of time protection extends after clinical trials now). After that, the drug goes into the public domain.

Pharmaceutical copyright would better describe this than patent and this program would better serve the needs of both consumers and companies. Currently companies under tremendous pressure to bring drugs out of clinical trials as soon as possible. The clock is already ticking on the expiration of patent protection. By changing to a system where the patent clock starts when clinical trials end, it removes the fear of losing revenues. This will allow companies to more naturally balance the risk of waiting (where other drugs can enter the market and where the company needs to pay interest on the money borrowed to perform the clinical trials) with the risk of being sued (because the drug has undesirable side effects).

Re:Cure worse than disease

[gnasher719]

It's pretty easy to "re-implement" newly developed pharmaceutical drugs as well... That is a completely different situation. With drugs, the expensive things are: Trying out one million possible chemicals and finding out that 999,999 don't have any positive effect. Then conducting studies to prove that the one drug that seems to have a positive effect doesn't have any side effects, like killing people.

Both of these factors are not there with software. Nobody writes down one million little C functions and then picks out the one that works. Your comparison with h.264 doesn't cut it either. h.264 contains an awful lot of work, and the people creating it did an excellent job. However, none of that should be patentable. The _ideas_ in h.264 are all quite straightforward and simple, and _ideas_ are what gets patented. The real hard work that gives h.264 its value cannot be patented. And as we have seen with MP3, you combine all these ideas, put all the work in, cover it with about 200 patents, and ten years later some troll comes crawling out of the woodwork with two patents and wants hundreds of millions.

That was an extremely annoying case. A patent troll being awarded much more than ten times the money for two measly patents that the MP3 people got for licensing a package of 200 patents.

Re:Cure worse than disease

[gnasher719]

Actually, I think many of the biggest companies actually would be in favor of abolishing software patents at this point. I wonder where Microsoft stands today. For them, patents are the biggest weapon against genuine competitors. On the other hand, patents make them an ideal target for more and more patent trolls, and this starts getting really expensive. Half a billion here, and half a billion there, and soon we are talking about real money :-)

Re:Cure worse than disease

[falconwolf]

in all seriousness, I don't object at all to significantly shortening the term of software patents. I do, however, find all arguments for completely abolishing them, entirely irrational, and borne from ignorance.

In all seriousness I've yet to hear any argument in support of software patents. Throughout the 1960s and '70s software was written without patent protection, and now FOOS projects show more software being written all the tyme without patents. Software already has protection, it's called copyrights, and GNU depends on them.

Falcon

Re:Cure worse than disease

[evilviper]

Throughout the 1960s and '70s software was written without patent protection,

"Software" doesn't need patents. "Open standards" do.

FOOS projects show more software being written all the tyme without patents.

FOOS has yet to demonstrate development of a high quality video codec, without re-using numerous patented methods.

Even Theora, which had the good fortune to be based on the mature VP3.2 codec, has been in development for half a decade, with nominal quality improvements (it needs significant improvement to compete with MPEG-4 ASP, and tons to hope to compete with H.264/AVC), no performance improvements (it needs tons to compete with MPEG-4 ASP), etc. etc.

FOOS deserves a lot of credit, but pioneering groundbreaking new technologies is absolutely, positively, NOT one of them. Doing a better job implementing already developed technologies is an important goal, but it's a completely separate issue from the one addressed by software patents.

Re:Cure worse than disease

[evilviper]

Gah! You've got me making the same typos now... That should be FOSS of course.

Re:Cure worse than disease

[evilviper]

And open standards are only open because they're either not patent-encumbered, or the patent holders have a written agreement not to charge for using their patents in the context of the standard. Patents are detrimental to open anything.

Open standards are not patent-free. In fact, patents are the ONLY WAY a company can make any money with open standards.

Do you seriously, honestly think people will stop trying to one-up the competition without patents?

Not at all. They will just stop opening up those developments to the public. Eliminating patents gives companies only one way to make money, and that is proprietary software.

Without patents we'd have have a large number of competing and incompatible proprietary standards:

* instead of DVB-S, we'd have 4DTV/Digicipher, et al.
* instead of AAC, we'd have VQF, et al.
* instead of RSA, we'd have lots of weak, non-peer reviewed methods.
* instead of MPEG-2, we'd be using numerous variations of Cinepak.
* instead of CDs and DVDs we'd all be using Minidiscs and many other disparate MO formats.

etc.

People will just hide behind trade secrets, which they do already.

Indeed they will, which is exactly the problem. And furthermore, the relative ease of reverse engineering means we won't have big, singular standards, but a plethora of proprietary formats and standards, each with very small improvements over the last.

There might be less incentive to innovate, and at worst, progress may slow down.

I think you're significantly understating it, but at least we don't completely disagree.

On the other hand, an overly restrictive patent system like one where processes can be patented won't just slow down innovation, it can potentially stop it dead in its tracks.

There is "potential" for patents to be too restrictive, of course, but that's clearly not borne out by reality, as development does indeed continue. I'm certainly NOT opposed to software patent reforms, simply the idea that is spread so far and wide here, that they can be thrown out entirely, and all the problems in the world will magically be solved. Patents serve a very important purpose.

You're comparing apples to oranges.

It was not meant to be an ideal comparison, but an example that runs contrary to the assertion... Patents do NOT stop innovation. If you patent one method and do not license it on good terms, someone else will develop an alternative way of doing precisely the same thing. This is how it has always been, and there is evidence that factor HELPS the economy, and technological developments, rather than harming it.

It's perfectly fair to respond to the hypothetical question "What if the assembly line was patented?" with the similarly hypothetical answer: "Then someone else would have developed something BETTER, to circumvent the patent!"

Re:Cure worse than disease

[falconwolf]

FOOS has yet to demonstrate development of a high quality video codec, without re-using numerous patented methods.

In other words progress in discouraged which is the oppose of what patents are supposed to do. This is one reason I oppose software patents, even with an army of lawyers it's difficult if not impossible to make sure you're not infringing on a patent. A lone programmer couldn't do it.

Falcon

Re:Cure worse than disease

[evilviper]

In other words progress in discouraged

Complete baseless nonsense. It's exactly the opposite.

A few FOSS developers can't develop something so complex as an advanced video codec, without depending on using others' (patented) developments.

FOSS hasn't developed a lossy video codec that does utilize patented method either... At most, FOSS has only ever re-implements existing video codecs.

FOSS serves a purpose, but developing ground-breaking new technologies isn't it. That requires lots of money, and FOSS doesn't have it, nor would it be smart to waste money in such a way, if they did.

Re:Cure worse than disease

[falconwolf]

In other words progress in discouraged

Complete baseless nonsense. It's exactly the opposite.

I don't see how you can say that. Because of patents it's hard to create a "high quality video codec". All, or almost all progress is based on what was done before, but if it can't be used there's not much progress.

A few FOSS developers can't develop something so complex as an advanced video codec, without depending on using others' (patented) developments.

See, you agree. Without infringing on patents a quality codec is difficult, However if non were patented then good quality codecs could be created.

FOSS hasn't developed a lossy video codec that does utilize patented method either...

And who wants to create a lossy odec, other than maybe MS and other proprietary venders?

FOSS serves a purpose, but developing ground-breaking new technologies isn't it. That requires lots of money, and FOSS doesn't have it, nor would it be smart to waste money in such a way, if they did.

So, Linux, OS X, and most of the software that runs the net isn't ground breaking? That's funny as most of the software that does run the net is FOSS. FOSS was there before the net was MS's wet dream.

Falcon

Re:Cure worse than disease

[jc42]

And if you don't give companies the options of patents to protect their developments, you can immediately say goodbye to all open standards and scientific sharing.

Actually, this has pretty much always been true for corporations, who have generally "contributed" to standards by trying to capture them, and have rarely published what little actual scientific research they have done. Scientific process depends heavily on open publication and building on others' results, "standing on the shoulders of giants" as Isaac Newton said. This is why most scientific advancement has historically come out of academia and government-sponsored research organizations. Research inside corporations is usually a dead end, because the results are kept private, or are patented to prevent others from building on them (aka "patent infringement"). Scientists in corporate labs are constantly frustrated by seeing their results locked up and unavailable to their colleagues for the usual scientific testing and extending of results.

There are some apparent exceptions that illustrate the point. Consider Bell Labs, which until the breakup of Ma Bell was a major research institute. It was (and is) owned by a private corporation, right? Uh, not exactly. During its heyday, Bell Labs was in fact owned by a corporation whose profits came almost entirely from a government-imposed monopoly, and whose management was firmly regulated by government agencies. In reality, Ma Bell was a wholly-owned subsidiary of the US government, acting (and regulated) entirely as a government agency. After the breakup, when all the "Baby Bells" became real private corporations, Bell Labs also quickly went dark and hasn't contributed much to the store of public knowledge since then.

(Well, OK; they have contributed Plan 9 and UTF-8, but the world has firmly ignored the former and is being dragged kicking and screaming into use of the latter. ;-)

Re:Cure worse than disease

[evilviper]

This is why most scientific advancement has historically come out of academia and government-sponsored research organizations.

You're welcome to try and prove it, as I don't believe this characterization for a moment. You might start by going through every single patent licensed by MPEG-LA and explain why every single one is either not important, or was actually developed by some government organization, rather than the corporation's name on the patent.

Government funded institutions certainly contribute a lot, but that is not to the exclusion of corporate R&D.

Research inside corporations is usually a dead end, because the results are kept private, or are patented to prevent others from building on them

Patents don't stop anyone else from continuing research on a subject, just the productization of something that is largely based on the patent (develop an idea far enough and it no longer resembles the patented method).

Re:Cure worse than disease

[evilviper]

I'm tired of your feigned idiocy. This will be my final response.

Because of patents it's hard to create a "high quality video codec".

No. Because of patents, it's EASY to create a high quality video codec.

The flip side of that wonderful advantage is that you have to pay licensing fees to the developers of the technology.

Without infringing on patents a quality codec is difficult,

A "quality codec is difficult". End of story. Copying someone else, who has done the hard work, is easy. YOU just want to be able to do so without compensating them for their work that has helped you out so very much.

All the knowledge about HOW to make a good quality codec was developed by corporations, with a profit motive in mind. Obviously, if you abolish software patents, then we all get "free money" so to speak for a very short time, but at that point, we all get stuck where we are, as nobody will spend any money to advance the technology further.

And who wants to create a lossy odec, other than maybe MS and other proprietary venders?

Who wouldn't want to create a lossy codec?

So, Linux, OS X, and most of the software that runs the net isn't ground breaking?

Linux is simply a clone of Unix. It's a lot of
work, but absolutely nothing high tech or ground breaking there. A microkernel like HURD would have been somewhat innovative, but that never really happened, did it?

OS X is not FOSS. They use some open source programs for their userland, and that's about it. The fact that OS X is innovative, in your opinion, does not support, but discredits your point.

Apache is good software, but it does nothing that wasn't done dozens of times before. OpenSSH is good software, but simply a copy of the proprietary SSH programs and protocol. Not to mention that RSA, which makes SSH and SSL/TLS possible, was patented technology, developed by a company (not FOSS developers), and only just recently expired.

Re:Cure worse than disease

[Kirth]

Abolition of Software Patents is just plainly nonsense.

"Kvack, Kvack. I want my government-granted monopoly."

Are we being a fan of mercantilism and governement-protectionism?

Funny enough, one of the main causes of the american revolution was exactly this sort of behaviour from the british side: The exempt of paying taxes for tea for the *cough* Honourable East-India Company, effectively granting them a monopoly on tea in the american colonies.

Now instead of a monopoly on tea you have one on the implementation of ideas. Cure worse than disease, indeed.

Unfortunately Britain is behind the times

[IBBoard]

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.

Re:Unfortunately Britain is behind the times

[jez9999]

I heard a minister on the radio today talking about how we had "liberty" over here, in a country where you can't smoke marijuana in your own home without being arrested.

Feeding the troll...

[cp.tar]

Ok so we've established that software should be an exception to the rule that he who creates something novel shouldn't be rewarded.

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".
Otherwise it just doesn't make sense, with or without Chewbacca.

Any other fields of endevour we should exempt? Not that anyone here doesn't have a personal stake in the outcome.

Well, let's first see if patents even work as intended.

Mathematical formula

[Anonymous Coward]

According to the article, if somebody stumbles upon a new way of performing a mathematical calculation that somebody else stumbled upon earlier and patented it, the one who's late to the party is potentially facing some legal liabilities? What's next? Patenting a faster method to get cube roots, if they're found? If you're so worried and don't want anyone to use it or know about it, don't tell anyone. It's that simple. What has humanity come to? It's time to end software patents now!

Re:Mathematical formula

[erlehmann]

What's next? Patenting a faster method to get cube roots, if they're found?

Better ... patenting a faster method of scraping the USPTO database and comparing it against a frequently updated list of novel software products.

Correction:Software patents *are* the problem

[erlehmann]

As I recall, so-called "reasonable and non-discriminatory licensing" (RAND) makes use in free and open source software impossible.

Also, some guy claims he prooved mathematically that software patents fail (disclaimer: i don't understand it) [1].

[1] http://www.juergen-ernst.de/info_swpat_en.html

Good job with the bathwater, watch the baby

[Mr. Underbridge]

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.

Re:Good job with the bathwater, watch the baby

[erlehmann]

the same for pharmaceuticals would be about a third of the amount of time spent developing a drug.

Speaking of pharma stuff, did you knew that the industry probably spends more an advertising than on R&D [1] ?
Perhaps they should be able to patent certain types of ads, too ?

[1] http://www.google.com/search?ie=UTF-8&oe=UTF-8&sourceid=navclient&gfns=1&q=pharma+advertising+research

Re:Good job with the bathwater, watch the baby

[mdwh2]

Whilst that is true, there are some issues specific to software that I think make it different to other patents:

* Software development can be far lower than in other industries - after all, one person and a computer can do it. So the legal fees to research whether a line of code infringes on a patent are far greater in terms of proportion, compared to some multi-million pound drug company or manufacturing company.

* Software seems to be more likely to be built on previous innovations. It's unclear why people should be rewarded when they are building on someone else's work (e.g., the patented shadow algorithm "Carmack's Reverse" in 3D graphics - not patented by Carmack, btw - is a modification of a shadow algorithm which is not patented). It also means that it's harder for new software to avoid building upon previous patented work - unlike hardware, where you can come out with a brand new product. Perhaps it's because software is still at a young age, in that fundamental components are still able to be patented - it's as if you were able to patent things like nuts and bolts, and the process of hammering a nail in.

* Software algorithms are a subset of mathematics. It's not clear how the line is drawn between an algorithm, and any mathematical process, nor is it clear why mathematical knowledge should be seen as an "invention" than can be owned by a person or corporation.

Re:Good job with the bathwater, watch the baby

[Mr. Underbridge]

Software development can be far lower than in other industries - after all, one person and a computer can do it. So the legal fees to research whether a line of code infringes on a patent are far greater in terms of proportion, compared to some multi-million pound drug company or manufacturing company.

True. But for that reason you have be able to document that you were doing something. It's not enough to just say "hey, I did that in 1995." You have to have proof. I also think there should be a statute of limitations (or a shorter one) on infringement. That's also why I think the patent term for software should be shorter and the applications expidited - the life cycle is very short.

Software seems to be more likely to be built on previous innovations.

As someone trained in chemistry, I can tell you that drug discovery is probably even more likely to be built on previous inventions. It's all based on peer-reviewed academic literature. Nobody's working in a vacuum, but that's the idea - building upon the work that came before.

Software algorithms are a subset of mathematics. It's not clear how the line is drawn between an algorithm, and any mathematical process, nor is it clear why mathematical knowledge should be seen as an "invention" than can be owned by a person or corporation.

That's true...but the fact that algorithms are an application of math holds in the same way that machines are an application of physics. You aren't "owning" math by developing a novel algorithm any more than you are owning physics by building something based on gears. As such, you aren't getting a patent the mathematical knowledge, but the *specfic* application of it. And I have no problem with that...again, assuming that the "nonobvious" part comes back.

Re:Good job with the bathwater, watch the baby

[Anonymous Coward]

Yeah, this discussion is great. Patent fanboys claim "but problem isn't patents, but XYZ". Others call the bullshit. Claims are being repeated. No convergence happens. So just to keep this process going, I'll play the part of patent opponent (btw, in interest of full disclosure, I am author of only 2 software patents... yeah, small fish, and both are for corporations I have worked for -- I have created dozens of pieces that would be patentable, however, should I believe in process of patenting things).

Your claim of patents not being the main problem, just some of parameters, is disagreed upon by many, perhaps most, experience software developers. Latter part is a claim, former observation.

My stance is simpler: patents for software are both harmful and unnecessary (for protection). Harmful due to the way they are used, amplified by parameters (long duration). Unnecessary because copyrights still exist. As to business method patents, well, they are harmful as well as wrong: whereas software _implementation_ should be protectable via copyrights, business _idea_ should have no specific protection.

Right approach for USA

[H4x0r Jim Duggan]

The legislative approach is difficult, but I think it's the best option in the USA. Getting good legislation would be very difficult. Most legislation in the USA is dreadful, but there's a good constitution, so the judges have the job of reconciling the letter of the law with common sense. So I think this campaign is taking the right approach by working via the court system.

FWIW, my background is that I worked on the EU anti-swpat campaign.

Re:Right approach for USA

[Attila Dimedici]

The idea of using the courts to fix the problem is interesting, since the courts created the problem in the first place. Software patents didn't exist in the '70's. In 1980 the Supreme Court ruled that a device that included software could be patented, forcing the Patent Office to change its policies. In 1998 the Federal Circuit Court ruled that not only software was patentable, but business methods were as well. This last ruling is the source of the problem. I am not sure if the best action is in the courts or in the legislature. The only way to get it to change through the courts is by a Federal Circuit or Supreme Court ruling.

Re:Right approach for USA

[Anonymous Coward]

While it's true the court created these new patents (as well as software copyrights), congress has since written it into the laws, so it's congress not the courts that needs to undo it.

Impacts on Software Industry?

[Scherpbier]

Like many of you, I hate the idea of software patents, but I can't but worry about the impact of an abolishment of software patents.
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.

Re:Impacts on Software Industry?

[rocket22]

Very interesting point of view: so, do you think patents are good for start ups? Do they really push innovation?

My concern here is that it is true tha patents can prevent new players to enter the game but then, what happens to OSS? I mean, many OSS projects are just plain alternative implementations of commercial products.

I'm not an expert, would they break the patent?

Re:Impacts on Software Industry?

[Wildclaw]

I am against patents in general. Not only software patents, but any patent as I think the disadvantages far outweigh the advantages. There are a few cases where they are useful, but they are simply too few to make the system worth keeping.

Many companies have come to rely on software patents raising the barrier to entry for competitors Artifically raising the barrier is usually not sound economics. While it can probably be said to be one of original motivations of patents, it simply causes the same problems that it tries to prevent. By raising the barriers of entry you decrease competition on the market, and by extension lessens the amount of inovations made. (I hope everyone can agree that competition drives inovation)

The first to market company (the inventor) still has the advantage of getting users used to their specific product, as well as establishing business relations.

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. This is one of the better reasons for patents in general. Showcasing a product that has yet to reach the market so you can gain funding from venture capitalists becomes riskier if the venture capitalists can turn tail and give the idea to someone else.

However, if the idea is not obvious, it should usually be pretty difficult to reverse engineer it. You just have to make sure that the venture capitalists don't get a hold of the inner workings of the product. Of course that requires stricter security, but it is probably a price worth paying.

If you don't even have a working prototype to demonstrate, remember that the patent office once upon a time required a prototype for every application.

As for the idea of using the patent itself as a bargaining chip to increase the chance of venture capital. That isn't different from the first argument, where you allow one company to make a profit (increase value of that company) at the expense of decreasing inovation associated with that patent.

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? As with any change in laws (just look at tax laws that change yearly) there is of course reprecussions. And with a system as complex as patents, there is a lot to details that have to be looked at.

While abolishing patents completly may extreme to some people, I would atleast like to see a real decrease in time of effect, just like with copyright. 5 years is a long period of time to get a head start in todays society. When the original copyright and patent lengths were set, development and distribution was much slower. Todays society is moving at a much more rapid pace, and we simply can't afford giving out generation (or in the case of copyright life) long monopolies.

Re:Impacts on Software Industry?

[Scherpbier]

With the current patent system, I think patents are a necessary evil. As a small software company you have to try to use any means to get ahead of any competitors and unfortunately patents have become basically a requirement for major fund raising. Yes, you could try to do it on the merits of your software alone, hoping the barrier to functional duplication by competitors are high enough so you can survive and grow organically. Let me tell you, though... This is *very* hard in the current state of the industry. Unfortunately, with all things equal, a small company with more funding than another small company will likely outperform their competition simply because they are able to attract more and better talent. There are exceptions to all of this, of course!

So, my worry with abolishment is that it will allow well funded companies to become bigger and there would be no incentive for small companies to start. (I hate stating things so black-and-white, but I am really worried about this!)

Reform of software patents is another story, however. There is a lot of merit in this. For one, I think shortening both the application process and the during of the patent would be good starts; in other words, make process and software patents "special". Another possibility would be to tinker with the copyright system, but it would probably need to change to have similar requirements as the patent system: proper registration, detailed description, etc.

Anyway, just by $0.02

Re:Impacts on Software Industry?

[enjahova]

I can only address your first two points. It seems that you have misconstrued the purpose of patents as protection for your business model, rather than to promote the progress of science and the useful arts.

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?

Isn't this the original point? If somebody throws an army of engineers at a problem, and it is thus solved, hasn't the world benefited? Patents are not supposed to protect problems you can throw engineers at anyway, they are supposed to protect inventions that are non-obvious to people in the field.

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.

So you're company hasn't built anything? You have "just an idea alone?" Why would anyone give you money? Why don't you make something, and then show it? I don't think patents are necessary in the software world to protect your inventions. After all, the latest trend is for the big guy to buy the little guy for obscene amounts of money. Why do you think this is? Because they are buying talent and brand, not a physical device.

Re:Impacts on Software Industry?

[init100]

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?

Of course not. Why should you? Your investments in patents would be just like any other failed venture. Should investors get compensated for bad investments into companies that go bankrupt? Times change, and those that are heavily invested into the old ways will take a loss.

Re:Impacts on Software Industry?

[rocket22]

Yes, I think all what you propose really makes sense, the problem is normally people is scared about "bad practices".

And, if we talk about the need for patents: there are no patents at all in Europe (not yet at least) and it doesn't seem to be a problem...

Re:Impacts on Software Industry?

[msebast]

> Our valuation and chance of obtaining funding depends on these patents.

Why?

Perhaps they just want you to have these patents for defensive purposes? But if software patents were abolished then the defense wouldn't really be needed. So the funding people would stop requiring them.

Maybe it's an insurance policy for their investment. Even if your company never amounts to anything they'll still have the patents. Which can be sold or your company can be restructured as a patent troll.

Or perhaps you are founding a patent troll company? Naturally that would require patents. And we won't miss you when they are eliminated. (I kid, I kid.)

One use that doesn't make sense is preventing competition. If a large company comes out with a competing product would you actually sue them? They can tie you up in court for 10 years. You will waste time talking to lawyers and thinking about the court case instead of managing your business. While they take over the market. And they will use their huge patent collection in a counter attack. It is unlikely you can create a useful product without infringing on some large company's patents.

Elimination of software patents will not hurt small companies. In fact it eliminates a huge class of threats to small companies. You won't have to worry about patent trolls. And large companies will be deprived of a weapon against you. And you'll waste less time talking to patent lawyers. I don't really see the problem.

Elimination will hurt two groups. Patent lawyers and patent trolls. Legitimate software companies, large and small, will not miss software patents.

Re:Impacts on Software Industry?

[falconwolf]

Many companies have come to rely on software patents raising the barrier to entry for competitors.

WHich is why software patents are bad, someone who does not have the resources will find it harder to break into business because of patents, meanwhile those patents won't stop Microsoft or other companies from infringing on patents. "So go ahead and sue us, in the end if we have to pay you, years later, it'll be chump change to us." "Microsoft appeals Office patent infringement damages".

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?

You never should of have had to pay all those legal bills to begin with, and without software patents you wouldn't have had to. Software patents are only good for lawyers, it makes them richer while others pay more.

Falcon

Re:Impacts on Software Industry?

[falconwolf]

This is one of the better reasons for patents in general. Showcasing a product that has yet to reach the market so you can gain funding from venture capitalists becomes riskier if the venture capitalists can turn tail and give the idea to someone else.

This is pretty easy to deal with, NDAs and non compeat contracts. What, some won't sign any? Then they loose because they won't have a product while an angel investor will.

When the original copyright and patent lengths were set, development and distribution was much slower.

The original copyright and patent terms were 14 year with one 14 year extension possible. And it was Thomas Jefferson, who originally opposed them, who calculated how long they should last. When he did he used an actuarial or life table. While development can be much quicker now, using TJ's methodology because people live longer patents would be longer. Personally I'm not sure about patents in general but I oppose software patents.

Falcon

Hopefully not

[Rik Sweeney]

I want to patent my idea first: It's a method of crippling a system's CPU using only a few lines of code. I'm not going to write it here obviously though, because otherwise someone will beat me to the chase.

Re:Hopefully not

[Rob T Firefly]

I want to patent my idea first: It's a method of crippling a system's CPU using only a few lines of code. I'm not going to write it here obviously though, because otherwise someone will beat me to the chase. Prior art.

Re:Hopefully not

[Anonymous Coward]

Cripple the CPU or merely the performance?! Alas, these software patents are so vague!

Re:Hopefully not

[Kareya]

To be fair he wrote "a few lines of code", not a few libraries of congress of code.

Re:Hopefully not

[Rob T Firefly]

Hahaha! Its a fair cop.

Yes-to proposition 'Huh!?'.

[Anonymous Coward]

Yes what? Yes your pants are too tight and your chicken mcnuggets are getting squeezed?

Software patents are the problem

[Anonymous Coward]

Micro$oft gets sued too. For a lot of money. And the amount is rapidly increasing.

Fuck sw patents.

And M$, ofc

Re:Software patents are the problem

[pipatron]

They are not being sued for using their own patents, their own patents are still good for them.

Re:Software patents ARE the problem

[Anonymous Coward]

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...

I disagree. The problem is that "the little guy" cannot afford the time nor the money to make sure that his software does not infringe on any existing patents.

Sure, he can get a patent or two, but what does that help when the big guys realize his software is competing to theirs and they want him gone? They'll just throw a few hundred patent documents at him and say that he's infringing. Please stop distributing or go to trial. The "little guy" does not have the money to go to trial, he does not have enough patents to go to a patent war, nor does he have the skill (and probably not the time) to read through the patent documents to check if he is in fact infringing. What do you suggest he do? Stop writing software?

Really, software patents are stupid and should be abolished. They're working against the very thing patents are supposed to protect. The little guy.

Refusing to Invent

[Anonymous Coward]

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...)

Re:Refusing to Invent

[Waffle Iron]

IMO, there should be a change in the definition of what's patentable that goes along the lines of your argument. Instead of being able to patent anything that's not immediately obvious to a random mediocre engineer, the test should be: "It is unlikely that this idea would have been independently developed by anyone else in the world over the entire term of the patent."

(Maybe patent terms could be variable, and you could apply for a 4 year or whatever year patent if you couldn't make a convincing argument that the idea wouldn't be independently invented in the next 20 years.)

That probably would cut the volume of patents down by 99%, while still rewarding the few people who come up with truly groundbreaking ideas.

Re:Refusing to Invent

[Rhapsody Scarlet]

What's the worst that could happen if patents were abolished? Simple, inventors could refuse to invent stuff.

Yeah, like when Vincent Van Gogh failed to sell any paintings, so he said "screw it" and gave up. Oh wait, that's not how it went...

Re:Refusing to Invent

[falconwolf]

What's the worst that could happen if patents were abolished? Simple, inventors could refuse to invent stuff.

Except things have been invented throughout history without patents.

Falcon

Maybe

[mevets]

That the patent laws are flawed is, well, patently obvious.

Software patents have contributed to making these flaws obvious enough for anyone to see.

In spirit, patent laws serve the greater good; unfortunately, in letter they fail. The same has been said about most of the 'isms' and 'anities'.

Yes, Novels

[CustomDesigned]

Other things that you write should not be patentable. I can just see the patent trolls waiting for a blockbuster like Harry Potter to come along so they can claim their cut for having patented "protagonists with a hidden relationship to the villain - but in a novel about modern day alchemists".

End or Kill?

[oever]

At FOSDEM 2008, another initiative was announce that goes for the kill:

Kill Software Patents

Really? -1 Hollow

[Anonymous Coward]

I don't know how this asswipe keeps getting his BS fortune cookie wisdom modded up, but he is actually making slashdot worse. If that is possible.

Here's an idea, the next time you think of a comment that a retarded child could have come up with, how bout doing us all a favor and keeping it to yourself. Slashdot moderators are such morons that even your most shallow bullshit somehow gets a modded to +5 Redundant.

Feeding the guy I disagreee with.

[Anonymous Coward]

"We've established that mathematics should not be patentable."

Software isn't mathmatics otherwise programmers would be mathmaticians. Second the law already says you can't patent math. Third copyright is no more effective for software than it has been for movies, music, games, and books.

"Well, let's first see if patents even work as intended."

They work but people would much rather gawk at the car accident.

Fortune columnist Regus Patoff?

[dpbsmith]

Blink, blink... nope, just middle-aged synapses misfiring again.

Certainly not

[PinkyDead]

(Light blue touch paper and retire to a safe distance.)

Abolish?

[Anonymous Coward]

Abolish is such a strong word, can't we just politely ask the pacific time zone to secede?

The core problem is patenting ideas

[mlwmohawk]

Software patents are not usable patents. "In the old days" a patent allowed a company to avoid R&D costs to produce a product. It was a way to allow inventors to create things and companies to build things. An inventor could invest his own time and money on his dream, patent an invention and a company could build the invention from the patent and pay a royalty. It was a beneficial arrangement. It makes a lot of sense in that context.

Patents today do nothing for the licensor except "protect" them from litigation on that patent. You still need to invest R&D to implement the idea. Worse yet, the ideas are so trivial they are valueless to the R&D. The only thing that they are good for is lawyers.

Patents Just Need Tweaking - Ben Klemens

[davide marney]

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.

Not just Software patents

[Anonymous Coward]

It is time to abbolish all forms of patents, all forms of copyrights, and all forms of trademarks.

No

[cjb658]

We don't need to get rid of software patents, we just need to get people to review them that know what the hell they're reading.

Lawyers weighed the options. We do have a verdict:

[D4C5CE]

Allowing software patents has just what you said:

(questionable if any) advantages, and severe disadvantages.

For recent analysis see e.g. this article at Oxford University Press.

Competitive Pricing

[bjinatj]

Patents do not allow competitive pricing. They should end them for good.

no one benefits

[Anonymous Coward]

>When they are kept locked down tight and only used as bargaining chips in patent wars, then no one benefits.

This statement's accuracy is inversely proportional to the bargaining chip patents' quality.

If the innovation described is worthwhile then the public benefits because of the disclosure to the public of the invention. Joe Competitor can learn and improve upon the innovation (and then patent the improvement). The alternative to this would be innovation locked down tight under trade secret, zero dissemination.

All patent policy must be analyzed in perspective of trade secret effects upon innovation.

The corollary here is that poor patent quality adds an inefficient layer of litigious friction to the transaction because there is little public benefit to (1) government sanctioned monopoly used to motivate trivial innovation and (2) public disclosure of this trivial innovation.

No patents on mathematics

[D4C5CE]

The problem with software patents is that anything that's really novel (...) is basically a mathematical algorithm. Since you can't patent mathematical algorithms, there shouldn't be any need for software patents. I'm not sure if I've ever seen anything really inventive in software that wasn't a mathematical algorithm.

According to a paper posted just below, you find yourself in perfect agreement with no lesser IT guru than Donald E. Knuth, author of The Art of Computer Programming, who had already admonished the US Commissioner of Patents and Trademarks many years ago that:

To a computer scientist, [any distinction between different kinds of algorithms to make them patentable] makes no sense, because every algorithm is as mathematical as anything could be. An algorithm is an abstract concept unrelated to physical laws of the universe.

Re:No patents on mathematics

[superwiz]

An algorithm is an abstract concept unrelated to physical laws of the universe. This is easily an argument for software patents. Abstractions are result of human creativity (and often its method). As such they are original and useful science (to some they even art). Therefore, they pass the litmus test for patentability directly established by The Constitution.

Re: No patents on mathematics

[D4C5CE]

Donald E. Knuth: An algorithm is an abstract concept unrelated to physical laws of the universe.

This is easily an argument for software patents. Abstractions are result of human creativity (and often its method). As such they are original and useful science (to some they even art). Therefore, they pass the litmus test for patentability directly established by The Constitution.

They do pass the test for the "to creators" part - i.e. for copyright in the particular expression as a work (e.g. a paper in in a maths/CS journal, or more recently, a program - preferably free if already paid for by public research grants), not for patents. Moreover, the founders never said "Patents shall be awarded to all...", but "Congress shall have power to"...make a balanced decision for the benefit of the public ("to promote progress"). The author or inventor benefitting is just an inevitable (albeit welcome) side effect.

Re: No patents on mathematics

[superwiz]

http://slashdot.org/comments.pl?sid=470808&cid=22601160

He does too

[Anonymous Coward]

RMS is all against software copyrights. The GPL intends to fight fire with fire and destroy the software copyright scheme from within. He is open to copyrights and patents in other fields (see, eg, Copyright and Globalization ).

You can't patent music so why patent software?

[Bryansix]

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.

Badly-needed cure for an IP overprotection disease

[Anonymous Coward]

What's nonsense is the claim that someone can have exclusive ownership over an idea or pattern.

And this reasoning is an "invention" of former President of both the US and the (then embryonic) USPTO, Thomas Jefferson (1813) as quoted on Slashdot ;-):

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

See how and why the founders came up with something like "For limited times, for public-interest purposes, and with a host of other reasonable restrictions..."?

Three year lifetime

[stremo]

The problem is not with patents per se. The original motivation behind patents, rewarding innovation, still holds. The problem is that the world moves much faster now than it did in Jefferson's day. I got a patent as a young pup that just finally expired. I haven't been able to use the technique for most of my career because my ex-employer, who did absolutely nothing with the idea, held the patent. Aside from allowing me to give the one-finger salute to patent trolls who contacted me about it, it did me no good at all to get the patent.

My proposal is to grant software patents for three years. If an idea is going to take off, that's plenty of time to develop a commanding position based on it. If it isn't going to take off, it's no loss to have the patent expire and better for society (the original purpose of patents, after all, was the good of society) for the idea to be available for others.

Stremo

The main problems with software patents

[grandpa-geek]

There are three main problem with software patents (and business method patents as well). One is the impossibility of searching the prior art. Another is obviousness to a Person Having Ordinary Skill In The Art (PHOSITA). And a third is that many software patents don't claim innovative solutions to problems, but claim all solutions to a newly discovered problem, even one for which the applicant really hasn't provided a practical, implemented, innovative solution.

The prior art in software is the corpus of all previously written software. To see if something had been done before, it would be necessary for a patent examiner to look through all software that had been written before to determine if a particular technique claimed in a patent application had been used. Programmers don't document their work very thoroughly, much less write journal articles on the techniques they use. And a lot of software technology is just learned by doing and by copying ideas discovered by reading other peoples' code but not formally otherwise documented by them.

Open source software provides one window into the corpus of software, and the IBM Type 4 program libraries (for machines such as the 360 and 1130) have some published source code, but proprietary software is distinctly unavailable for searching in most cases.

The same applies to business method patents. What business writes journal articles about their ways of doing things, especially ways that give them a competitive edge? Again, ideas are learned by doing and copying ideas learned on previous jobs.

One example is the Amazon "One Click" patent. That patent combines the cookie with the open account. You couldn't tell that by looking at the obfuscated language in which the patent is written, but that is what it does. Evidence of the open account as a business process can probably be found by looking in records written in Babylonian cuneiform. However, the USPTO doesn't search records in Babylonian cuneiform to look for evidence that a business process has been used before.

A second example is the patent for which Verizon sued Vonage. Any programmer with a brain would know that to hook up a VOIP system to a telephone switch would require some information and that the best way to organize the information would be in a database. The rest is legal obfuscation. If patent applications had to be written to a level of plain understanding, most would fall away because of obviousness.

Finally, patent applications should be required to include a working model or implementation or some kind of other evidence that the applicant wasn't just patenting the problem but actually had a solution. There was a discussion some months ago on Slashdot about a patent that covered all ways of doing something with graphics. The recipient clearly had discovered something that needed to be done in a graphics system. What the patent claimed was all ways of doing what was needed. IIRC, what the patent actually provided may have been one way of doing it, or might not have provided an actual solution. This is the software equivalent of patenting the electric light without figuring out how to make one that worked, a process that took Edison a lot of time and effort.

Many lawyers have a difficult time understanding technology. Some became lawyers because they weren't good at math and science. When those lawyers become judges, they don't suddenly gain an understanding of technology. They stick to their comfort zone. That is the reason the CAFC required documentary evidence to prove what prompted a PHOSITA to do something obvious. If it wasn't obvious to a lawyer, why should they treat it as obvious to a PHOSITA? Fortunately, the Supreme Court saw otherwise. Perhaps the courts will come to their senses on software and business method patents as well.

No.

[tverbeek]

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.

Re:No.

[profplump]

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.

Re:No.

[mfnickster]

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?

Because computers are general-purpose machines, and to say that a computer acting in one manner is a different invention than a computer acting in another manner is basically pretty silly.

Not to mention that computers give you almost infinite flexibility in achieving a task. To restrain that freedom is counterproductive and fundamentally unfair. To quote the League for Programming Freedom, "no one should be able to dictate what kinds of programs you can write."

Re:No.

[TekPolitik]

Software is the new Hardware

We're not interested in your erectile dysfunction pills.

Re:No.

[tverbeek]

Making a distinction between hardware and software is both arbitrary and meaningless. For every piece of software you can write, you can create a piece of hardware which performs the same function. It's just more efficient to do it in software. Similarly, you can take a set of standard off-the-shelf gears and levers and build a machine which does something in a way that no one else has done before.

Re:No.

[TapeCutter]

"Similarly, you can take a set of standard off-the-shelf gears and levers and build a machine which does something in a way that no one else has done before."

Yes, you could make a difference engine, a trajectory generator from maccano or a programmable chip. The question is now should every possible user setting of those machines be protected by patents?

Software is written (even if subsequently burned onto a chip), current copyright law is MORE than adequate.

Re:No.

[mfnickster]

Making a distinction between hardware and software is both arbitrary and meaningless. For every piece of software you can write, you can create a piece of hardware which performs the same function. It's just more efficient to do it in software. Similarly, you can take a set of standard off-the-shelf gears and levers and build a machine which does something in a way that no one else has done before.

It's neither arbitrary nor meaningless - in fact, it's a very important distinction. If it weren't, then every time you issued an update to a patented program, you would have to re-apply for a patent on your new "invention."

Let me ask you this: does a television become a new invention every time you change the channel?

Re:No.

[tverbeek]

Completely incorrect. You do not need to apply for a new patent when you make changes to your implementation of it, as long as the fundamental "innovation" that was patented remains intact. Do you imagine that Eli Whitney had to reapply for a new patent every time he built a slightly different or improved cotton gin? Of course not, because his patent was on what the machine did, not what the machine was. The patent is on the verb, not the noun. If you're going to criticize the patent system (and there's plenty there to criticize) you really should try to understand it better.

As for your television analogy, it misses the point because TV shows aren't useful (in the legal sense), which is what the patent system was created to promote. But try applying it to a hypothetical holodeck (the ultimate example of the interchangeability of hardware and software): If you reprogram a holodeck to separate the cotton seeds from cotton in a new and better way... why shoudln't that count as a patentable invention?

Re:No.

[mfnickster]

Okay, maybe that was a bad example - but Eli Whitney is also a poor example. He only held one patent on the cotton gin, and his company went under before he ever came out with a revised version.

However, you are right that he wouldn't have had to patent new versions, but only because he held the patent on the original. You can't infringe your own patent. Even so, you can get a new patent if you have revised or improved at least 10% of the original design - I'll leave it to the courts to decide whether that means 10% of lines of code or 10% of bytes.

You are mistaken, though, about the patent being on what the machine did. It was a machine patent, not a process patent. I'm certainly no expert on patents, but I do know that that you can't patent the purpose of a machine or process - you have to patent the method, i.e. the "how" and not the "why." Certainly the process of separating cotton counts for thousands of years' prior art; there is no way Whitney could have been "patenting the verb," he was in fact patenting the noun. He didn't even want to sell the gin - he wanted to charge for service instead! Most of the cotton gins sold, which revolutionized the cotton industry, were not Whitney's.

The television analogy was meant to illustrate how the same hardware can be applied in nearly infinite ways, just by changing the patterns of electrons running through it. I would say that yes, some shows indeed are 'useful,' but that's not the point. The point is that the hardware is general-purpose hardware and doesn't become a new invention just because you change the programming. Software is a separate invention, just as the holodeck program would be - but the key is that it is almost infinitely reconfigurable, even while it's running. That's something no physical invention can match.

You said that it's possible to build hardware that will do what any given program can do, but nobody does this - partly because it's not practical, as you said, but mostly because it would rob the machine of its flexibility, which is the main justification for using a general-purpose computer in the first place. There have been a spate of ill-advised patents which are nothing more than "use a computer to do xyz," where "xyz" is an existing process. I'm sorry, but I can't see how that deserves a new patent.

Programmable computers are truly unique in the history of technology. From a physical standpoint, they don't even "do" anything other than consume power and generate heat. The hardware is useless without software, and the software is useless without hardware. Software isn't strictly a design, it isn't strictly text, it isn't strictly a machine - it has elements of all these things, and therefore deserves separate consideration.

Patents on software rob the computer of its flexibility, it's as basic as that. Someone once pointed out that the vast majority of software out there today infringes someone's patent. It's practically impossible to write a significant program today that doesn't step on someone's patent. If software patents were enforced to the same degree that they are granted, the computer would cease to be a useful device. To maintain an information economy, programmers need to be free to implement solutions without this kind of encumbrance.

time to burn some karma

[superwiz]

I'll come squarely on the anti-slashdot side on this one. Software patens must continue to exist. Maybe in a better-defined way, but if they are abolished, software will be hindered severely. I am a mathematician. I may have an idea of how to SOLVE the travelling salesman problem in polynomial time.... Again, not prove that it's impossible, but solve it. It's not my direct are of expertise. So I would need to invest at least a year to iron the details of my idea. I have no intentions of doing it just to publish a paper. Plainly, it's too boring a subject for a paper. I would only do it for financial gain. Without software patents no financial gain can be made from solving an outstanding problem of this magnitude.... that is none for the person who would solve the problem. All the leprecons who'd "implement" the solution would stand to earn large amounts of money. To summarize: no patents=no solution to an outstanding problem. I am aware of all the points on the other side of this argument. They amount to the argument that "business method" patents should be abandoned -- not software patents.

Re:time to burn some karma

[edraven]

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.

Re:time to burn some karma

[argent]

Maybe in a better-defined way, but if they are abolished, software will be hindered severely.

Can you point to a single software patent that has worked the way you think they should?

I may have an idea of how to SOLVE the travelling salesman problem in polynomial time.... Again, not prove that it's impossible, but solve it. It's not my direct are of expertise. So I would need to invest at least a year to iron the details of my idea. I have no intentions of doing it just to publish a paper.

Not even for a crack at the Fields medal? I suspect that a solution any problem of this magnitude would be a shoe-in.

To summarize: no patents=no solution to an outstanding problem.

If that's the case you should have no problem coming up with an answer to my first question. For my second, well, that's between you and your tenure committee.

Re:time to burn some karma

[superwiz]

Ah, the causility argument. Cute. Boneheadedly wrong (I warned that I'd be burning karma on this one), but cute. As a tool for promoting useful science and arts, IP increases probability that a someone will chose to spend time of their life on generating useful ideas. People do settle into life-styles that support their lives. So if less money is made by generating ideas, less people will spend time generating useful ideas (because they have to make a living doing something else). It's not about absolute possiblities vs impossibilities. It's about establishing tendencies in the right or wrong direction. Even if tendencies in the wrong direction existed, good ideas would be generated. Just not as much and not as often. And for concretes, if you don't think RSA has changed the world, you are just plain high. As for the whole research-is-done-in-academia-for-its-own-sake arguments. It's often true. It is also often true that people start out on a certain research path hoping to make big bucks with a new idea (I've known such people personally) and when the idea doesn't work they settle for publishing in academia. Again, I am not saying all academic papers are of such nature (most aren't), but if this trend exists, then the profit potential is still a motive for a lot of good work. Without it, less good work will be done.

Re:time to burn some karma

[superwiz]

Not even for a crack at the Fields medal? Would I care for a shiny medal instead of a chance to move the world? I am not a 12-year-old.

Can you point to a single software patent that has worked the way you think they should? Certainly RSA comes to mind.

Re:time to burn some karma

[gnasher719]

I am a mathematician. I may have an idea of how to SOLVE the travelling salesman problem in polynomial time.... The probability that you win a few million pound by buying a single lottery ticket is much much higher than then probability that you solve the travelling salesman problem in polynomial time.

Re:time to burn some karma

[falconwolf]

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.

Have you ever heard of the internet? It was created in the 1970s, specifically before 1970 ARPANet, the predecessor of the internet was being created. On 7 April 1969 ARPA awarded BBN won the contract to create it. Eric Allman created Sendmail in 1983 as a descendant of Delivermail which was created in 1979. In 1977 BSD started being distributed. And following experiments in the '70 Usenet was established in 1980. What wasn't created, or preceded by something earlier, in the early '80s if not before was Gopher, created in 1991, the World Wide Web created in 1989, IRC, and Instant Messaging.

Falcon

Re:time to burn some karma

[edraven]

I suppose the sarcasm of my comment was more subtle than I'd intended.

Re:time to burn some karma

[superwiz]

The probability that you win a few million pound by buying a single lottery ticket is much much higher than then probability that you solve the travelling salesman problem in polynomial time. You (and I do mean you -- not one) will never know.

Re:time to burn some karma

[Anonymous Coward]

huh?

If that's too boring for a paper, then you're not cut out temperamentally to be a mathematician. gb2business school.

Software has never been of qualities that are ...

[3seas]

...patent-able.

which makes this effort something of a public deception.

Instead what is needed is a proper genuine and honest perspective, rather than a political/economic argument
http://threeseas.net/abstraction_physics.html

My wikipedia like page (with links and more) is currently down.

Copyright, trademark, and trade secret

[tepples]

I don't like how software gets 3 kinds of legal protection where anything else in the world only gets one. With software you get trade secrets, because you never have to release your source code. You also get copyright, so the relased binaries (or source code if you choose to release it) can't be copied unless specific permission is given. You also get patent protection. No other thing produce by people gets so much legal protection. Cartoon characters are subject to exclusive rights under both copyright and trademark law. In addition, the model sheets, which help determine whether a drawing is off-model, may be unpublished and therefore a trade secret.

Do it: Trigger a burst in commercial creativity

[Anonymous Coward]

There have got to be a number of let's say, above-average coder types who became so disgusted by the legal landscape in this business that they just sit on the sidelines now creating what they want for their own enjoyment. This would be possible for example if they had banked enough cash in the 90's before the business was overrun by parasites. End software patents and you may see these prolific but neurotic types willing to share their works again. :)

Without copyright there is no need for copyleft

[tepples]

The only thing that stops $BIG_EVIL_COMPANY to take any GPLed open source project, add random proprietary changes to it, and release it without the new source code, is because if they do, they will break the GPL, and the GPL is only enforcible because of the copyright laws. Without the GPL, and in extension: the copyright law, they wouldn't have any obligation to release the source except for goodwill Or except for the fact that it's possible to reduce any program to source code. In a world without copyright, people would be free to produce commented disassemblies of software that comes without source code, and post these disassemblies in comp.sources.

No patents to help starving mathematicians either

[D4C5CE]

I have no intentions of doing it just to publish a paper. (...) I would only do it for financial gain. Without software patents no financial gain can be made from solving an outstanding problem of this magnitude.... that is none for the person who would solve the problem. All the leprecons who'd "implement" the solution would stand to earn [by extension: and have to pay superwiz] large amounts of money. To summarize: no patents=no solution to an outstanding problem.

So if your financial gain is the issue (that everyone else should suffer to further), shouldn't you have checked that 35 U.S.C. 101 contained "algorithm" in addition to "process, machine, manufacture, or composition of matter" before entering the field and number-crunching all the way to your degree; i.e. consequently have chosen something else, such as rock music or becoming a movie star (see, Cipher in The Matrix was facing that question too...;-)) - or even, becoming a Congresscritter with sufficient following to repeal all parts that are inconvenient to your goal, and marked in bold below, from Art. 1 of the Constitution?

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

Compare to the ROM hacking community

[tepples]

Abolishing copyright doesn't force anybody to release source code. You're right. In an environment without copyright, publishing a computer program without source code doesn't force anybody to disassemble your software, add comments that explain exactly how it works, and spread it across all of Vice President Gore's internets. It just encourages them to. For example, it would mean that the ROM hacking community wouldn't have to operate so underground.

Absolutely!!!

[hawks5999]

Especially now that we are in the year of Linux on the desktop.

Re:No patents to help starving mathematicians eith

[superwiz]

So if your financial gain is the issue (that everyone else should suffer to further), shouldn't you have checked that 35 U.S.C. 101 contained "algorithm" in addition to "process, machine, manufacture, or composition of matter" before entering the field and number-crunching all the way to your degree; i.e. consequently have chosen something else, such as rock music or becoming a movie star (see, Cipher in The Matrix was facing that question too...

I said that it's boring as far as papers go. I didn't say it's the most boring thing in the world (you know -- like being anything but a mathematician). On a more trolling note, math is the beginning of all knowledge. So it's earning potential when fully explored (something that is rarely accomplished) is much higher than that of any other profession. But if you think that I have no right to negotiate a fee for my unique work, then you are trying to usurp it. And without proper authorship ip protection of an idea my work can be used by anyone without paying a fee. Or I could just figure it out and never publish it because I can explore it on my own for its profit potential (it has implications in AI producing better-than-actual intelligence). Or not. But without assurances that my idea will be mine, you'll never see its benefits. To answer your question with a question, "who's john galt?"

patents

[ucblockhead]

The problem isn't software patents. The problem is that it seems like the vast majority of patents, software or otherwise, are granted for things that shouldn't be patentable, either because there is prior art, because the thing being patented is obvious or the claim is far too broad.

Re:patents

[tverbeek]

Just saying it's "totally different" doesn't make it so. How is a software implementation of an idea different from a hardware implementation of it?

OTOH, copyrights are very different from patents. The scale of their duration is vastly greater, the rules for what constitutes infringement are different, they specifically do not protect the ideas being expressed. Saying that copyrights adequately protect and promote the development of new useful software a) ignores the fundamental differences between the two legal concepts, and b) tortures copyright law into doing something it was never intended for.

Re:patents

[falconwolf]

How is a software implementation of an idea different from a hardware implementation of it?

Unlike hardware software is protected by copyrights.

OTOH, copyrights are very different from patents.

They are now but they used to be similar. Both lasted 14 year with one 14 year extension possible. A patent required the details and a working example so anyone proficient in the field could build one themselves so that eventually how to do so would enter the public domain. Copyrights required the entire work being submitted or on file, I hear now copyrights for software do not require this. Without the entire code it could never enter the public domain.

they specifically do not protect the ideas being expressed.

Ideas shouldn't be protected, only specific implementations of an idea should be. Patent X which protects solution A to problem B shouldn't prevent me prevent me from patenting a totally different solution to B. For instance even if NTP had released an actual product using it's patents so long as RIM had not used their specific implementation of the patents NTP shouldn't of been able to sue RIM for patent infringement, well they shouldn't have won.

Falcon

Software Patents!!

[Anonymous Coward]

Yay! Another article about software patents! I love hearing about software patents! I can't get enough! In fact, I'm going to talk about software patents all the time! Here I go! Software patents, software patents, software patents, software patents, software patents, software patents, software patents!!! YAY!!!

Patent Reform

[tantaliz3]

X = Patentented Code. Y = Total Project Code Y/X = Patentholder's Royalties %.

No, we thought of that, too...

[Anonymous Coward]

> The parent you replied to blindly and stupidly assumes that if copyright did not exist in Law that all software developers would magically decide to release the source.

Don't be silly, of course they wouldn't. But the GPL still wouldn't be necessary. We'd reverse engineer anything we needed to and we'd be able to use it.

> You and I know that if copyright Law were to be abolished, source code would be treated as Trade Secrets by those who don't currently believe in Free Software.

Indeed. But it wouldn't work any better than DRM. You know how well that works, right?

The GPL is designed to become more powerful when copyright is more powerful, but this goes the other way, too. It's supposed to become weaker when copyright is weaker, even to the point of vanishing.

I mean, it's not like Stallman has an entire manifesto dedicated to why we wouldn't need the GPL any more or anything... None of these arguments are new!

Pick your poison ...

[Pinky's Brain]

The only way to test obviousness is with a jury of people skilled in the relevant art (a true jury of peers for an inventor). The problem is these people cost too much (both for patent examination and even trials). That's why obviousness is never going to be a significant part of patent examination, the best we get is lawyer developed objective methods (which boil down to "it's the first time it appeared in print so it's non obvious) and the amateur opinion of patent examiners (who will get shouted down by lawyers if they turn down a patent for something as subjective as their opinion on obviousness).

You can not make obviousness an integral part of the patent process, even if the lawyers would let you (which they won't) it's simply impossible.

So pick your poison, patents on everything ... or patents on nothing. I chose patents on nothing.

Can you elaborate on the RSA situation?

[argent]

You can move the world *and* get the Fields medal.

As for RSA, you'll have to explain that one.

* It was developed before there was any reason to believe that a software patent was viable. The first "software patent" was the setuid patent, applied for in 1972, granted in 1979. RSA was published in 1977.

* It was only patentable in the US because they didn't file until months after they published.

* The biggest effect of the patent was to kick off a search for a non-patented alternative, leading to the DSA algorithm being explicitly released royalty-free world-wide in 1991.

* The next biggest effect of the patent was to create nearly as big a split in the crypto community between the US and the rest of the world as ITAR did.

* It wasn't economically valuable for years because nobody could afford hardware that could actually manage to run it fast enough to be economical: I remember a lecture at UNI in 1979 where the prof started an RSA encryption with a fairly short key at the start of the lecture and it finished at the end.

* By the time RSA was making money from RSA, rather than from venture capital, the main reason that RSA was in wide use was PGP... and RSA managed to screw PGP up in the process. The history of RSA is a mess of acquisitions and speculation.

So the work clearly wasn't motivated by software patents - the patent itself seems to have been an afterthought, and it's at the very least questionable that the RSA patent has in fact advanced the state of the art. So where's your point?

Re:Can you elaborate on the RSA situation?

[superwiz]

As for RSA, you'll have to explain that one. Given that the people behind it were clearly profit-driven:

By the time RSA was making money from RSA, rather than from venture capital, the main reason that RSA was in wide use was PGP... and RSA managed to screw PGP up in the process. The history of RSA is a mess of acquisitions and speculation. it stands to reason to believe that they would not try to make a working product out of it unless they could make money off of it. Innovation (as well as discovery) happens for 2 reasons: vision (of the insightful) and accident (of the curious wanderers). The latter will happen with or without any financial motivation. The former takes more than an idea. It also takes a vigorous drive. You cannot possibly suggest that without that company the banking system would have advanced as it did.

You can move the world *and* get the Fields medal.

Name one person who created a new industry from the work for which he was awarded a Fields medal.

...bah. this is all just bickering. I am sorry. I am tired of this argument now. I think we both understand each others' positions. But I'd rather go do something useful now.

Re:Can you elaborate on the RSA situation?

[argent]

it stands to reason to believe that they would not try to make a working product out of it unless they could make money off of it.

They did the hard part (bringing the algorithm to the point where anyone could implement it, like Phil Zimmerman did for PGP) in 1977 before they even considered applying for a patent, and *other people* were reducing it to working implementations by the time of the math lecture I mentioned. That was in 1979. Hell, the development of commercially viable tools based on the RSA algorithm was done primarily by people other than RSA Data Security: they didn't develop PGP, they didn't develop SSH, they didn't develop SSL, their first major product (SecurID) wasn't based on the RSA algorithm and they didn't reveal the algorithm it used, let alone patent it... in fact they took great care to keep it a trade secret.

You cannot possibly suggest that without that company the banking system would have advanced as it did.

Sure I can. I'm honestly surprised that you'd suggest RSA's patent had any positive impact on banking at all. As far as I can tell, most of the work in cryptosystems post 1985 was based on elliptical curves just because of the potential impact of the RSA patent on any algorithm based on prime factoring.

Name one person who created a new industry from the work for which he was awarded a Fields medal.

* RSA didn't create a new industry from the RSA algorithm.
* The example you gave where I brought up the fields medal had nothing to do with RSA, but was something that would get you a Nobel-equivalent in mathematics.

patents

[falconwolf]

Software is the new Hardware, so I don't think patents should be done away with as we move into this realm.

Hardware patents are one thing but software patents are totally different. Software is already protected by copyrights.

Falcon

We're not interested in your erectile dysfunction

[falconwolf]

pills

As one of TFA says though, there are no pharmaceutical patent trolls.

Falcon

drug approval

[falconwolf]

drug X must get FDA approval which takes 2 years, but drug Generic-X can use the previous approval

Actually no they can't. An excellent example of this is Taxol. The National Cancer Institution, as part of the National Institutes of Health it's a government organization, did all the research into Taxol for chemotherapy in treating cancers such as breast cancer. After spending $183 million of US tax payer money the NCI sold all of the research including the data needed for FDA approval to Bristol-Myers Sqibb, BMS, for $43 million. No other pharmaceutical can use the date needed to win FDA approval.

Falcon

extending patent terms

[falconwolf]

Yes the thought of Congress re-evaluating Patents with the situation as it is, is a very scary thought to me. Imagine if Patents were extended to life time of inventor + 70 years.

There's one problem with this, as one of TFAs said among those threatened by software patents are banks, and they'd put up a lot of money to stop this.

Falcon

Constitution of the USA

[falconwolf]

Abstractions are result of human creativity (and often its method). As such they are original and useful science(to some they even art). Therefore, they pass the litmus test for patentability directly established by The Constitution.

Wrong, The Constitution of the USA says "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". Progress not useful. Software patents however stifle progress.

Falcon

Re:Constitution of the USA

[jc42]

Software patents however stifle progress.

More generally, all patents stifle progress. Wishful thinking and propaganda aside, patents have very rarely been used to "To promote the progress of science and useful arts", as the US Constitution says. The primary use of patents has always been to block other developers from extending and improving patented ideas until the patent runs out.

Histories of the topic have described many cases in which a patent holder made little if any further progress or income from an invention until after the patent ran out, due to the time and money cost of defending the patent. It's also fairly common for uses of a patent to be blocked by the need to use other people's patented ideas in any practical product. The determination of all the patent holders to claim the lion's share of the profit can effectively prevent anyone from selling anything.

If the patent system imposed an automatic license like the "mechanical license" of the copyright system, perhaps these problems could be avoided and patents would actually be usable and profitable to most patent holders. But nobody seems to be proposing this.

Re:No patents to help starving mathematicians eith

[falconwolf]

And without proper authorship ip protection of an idea my work can be used by anyone without paying a fee.

Have you ever heard of copyrights and Trade secrets? Software patents are not needed. Software was being written in the 1960s and '70s without patents. Tech Model Railroad Club members at MIT were writing, and leaving out so others could improve, software back then. When Microsoft was started most software was shared, Bill Gates was one of the first in demanding people not share his Altair BASIC interpretor. Before then, and now, a lot of software was and is being created without any patent protection.

Falcon

Blackberry/RIM

[falconwolf]

However, since only one company was successful (better product, better marketing, better luck, whatever reason), the successful company was sued.

I don't know of an actual product the "unsuccessful" company released to the public. DO you have a link to it?

Falcon

Software Patents

[falconwolf]

Abolition of Software Patents is just plainly nonsense.

What's nonsense is software patents. As shown by Linux and other FOSS projects has shown they are not needed.

Falcon

Re:software patents

[superwiz]

I am tired of all the causality arguments. Motivation shifts... nudges (shapes?) trends. It doesn't produce possibilities or impossibilities.

Re:software patents

[superwiz]

hackers, is Steven Levy's "Hackers: Heroes of the Computer Revolution". I believe it was in its first edition when I read it (in '93?), so it's been a while. I might not quite remember the details like the name of Tech Model Railroad Club.

Re:software patents

[shentino]

GP's statement about a need for software patents was a qualified one requiring a few changes to the status quo, Obi-Wan.

Re:software patents

[falconwolf]

GP's statement about a need for software patents was a qualified one requiring a few changes to the status quo, Obi-Wan.

Maybe I missed it, can you point out the qualification GGP made?

Falcon

drugs

[falconwolf]

It's pretty easy to "re-implement" newly developed pharmaceutical drugs as well...

But it costs a lot to get FDA approval for a drug. All of the testing needed to win approval can cost millions of dollars. What's ironic is that pharmaceutical companies spend more money on advertising and marketing than they do on drug research.

Falcon

Software patents

[falconwolf]

I'm torn when it comes to software patents. Inventors need to have a LIMITED amount of time in which they can exclusively profit on their ideas.

Software can already enjoy two protections, copyrights and trade secrets.

Falcon

drug research

[falconwolf]

So the legal fees to research whether a line of code infringes on a patent are far greater in terms of proportion, compared to some multi-million pound drug company or manufacturing company.

* Software seems to be more likely to be built on previous innovations.

Ah but drug research is usually based on prior research or old knowledge. "The Pill", Progesterone, used to prevent pregnancy was based on the southern Mexican plant yam. The American Indians living there used the plant for this reason, to prevent pregnancy. Ethnobotany is the study of how different ethnic groups use plants for health or otherwise. And there are different ethnic groups throughout the world fighting against those who take the knowledge as their own for profit and are fighting against biopiracy.

Falcon

With the current patent system

[falconwolf]

my worry with abolishment is that it will allow well funded companies to become bigger and there would be no incentive for small companies to start.

I see it just the opposite. Software patent drive up the price of starting and running a software business. If I were to use my free tyme to write a program to do something I wouldn't be able to afford to make sure I didn't infringe on anyone else's patents. That's not a problem when there are no software patents, but with them it is.

I think shortening both the application process

Shortening the tyme for patent applications will only make things worse. Patent examiners will basically be made to rubber stamp applications. This would increase costs because more money would be needed to dispute patents, whether because of prior art, the examiners not having enough tyme to check for it, or otherwise.

Falcon

software patents

[falconwolf]

Software patens must continue to exist. Maybe in a better-defined way, but if they are abolished, software will be hindered severely.

If software patents are needed so much then how did all the software before patents were granted for them get written? And how is it FOOS projects exist now? Without patents the members of MIT's Tech Model Railroad Club were writing programs for the PDP1 then leaving them out for others to improve. A good read on it, and hackers, is Steven Levy's "Hackers: Heroes of the Computer Revolution".

Falcon

Re:No patents to help starving mathematicians eith

[superwiz]

Never heard of the Tech Model Railroad Club by name, but I have heard of the nature of the efforts. Of course, Bill Gates' story of BASIC interpreter is famous. So he came across a wrong business model -- charging people for software itself. Well, to be fair, a business model that was wrong if you wanted to produce quality software while making money. It's amazing how many people turn this into a causality argument. Let me give you an analogy. If we had no laws whatsoever, we would not all be dead because there are murderers in the world. So let's not have any laws. Doesn't sit right, does it? Well, that's because causality arguments don't work for situations which have many causes. The best you can hope for is the probability arguments. Which means you have to talk about what type of system would produce a more beneficial trend... how to nudge things in the right direction. Software was developed without patents. Sure. But to almost every mathematician to whom I speak about this argument, the programmers' position is just downright obnoxious. It amounts to saying that mathematicians' work must be given away freely (or for some nominal flat fee -- which is what grants are) so that programmers can make money off of it. A working patent system would eliminate need for (most) trade secrets. I agree that the system is broken. But I am pretty sure it is because business methods are patentable.

More generally, all patents stifle progress

[falconwolf]

I haven't made up my mind on patents for hardware. If you go over my posts on patents over the past couple of years, while I've always opposed software patents, you can see I went from supporting them to opposing them to now when I don't what to think of them. There are good points as well as bad points to patents. The father of capitalism, Adam Smith, too wasn't sure about them. In the sense that they grant a government monopoly he opposed them however he also thought people would invent more if they could be sure they could benefit from a limited monopoly. Though I'm still thinking it through, I'm starting to lean towards a system where an inventor could get a patent for a few years, from the tyme they produce a product for the public but they have to release within a reasonable tyme period or they'll lose it, but in order to keep a monopoly afterwards they'd have to pay a premium on a sliding scale. Say the first year after the patent expires they may be required to pay 1% of sells as a royalty, then the fifth year, 10%, and 25% the 10th year. The longer they want to hold the patent the more they pay. Then the money generated can be used to hire enough expert patent examiners so they will have enough tyme to check for uniqueness and prior art.

Falcon

Re:No patents to help starving mathematicians eith

[superwiz]

Ok, a number of people have been throwing the traditional slashdot arguments at me due to this comment. I said that I am tired. But it keeps bugging me. So I'll just try to be as clear as I can before I finally let it go. If people disagree, we'll all be worse off for it. But that's that.

Under the current ip regime there are certain winners and certain losers. There is a chain of source-to-market of innovation. Roughly it goes like this:

Someone works hard or happens to accidentally come across an innovative idea. They describe it in the most abstract terms (philosopher, pure mathematician, theoretical physicist, etc). Let's call this person A.

A explains their idea to a number of people who have some skills in using abstractly defined patterns to describing real-world objects (engineering researchers, historians, applied physicists, applied mathematicians, computer science researchers, biologists, etc.). Let's call these people B.

B describes their ideas to the people who are actually interested in manipulating real-world objects (engineers, government, reporters, artists, merchants, programmers, architects, doctors, lawyers, etc.). Let's call these people C.

Some of the C's can do their manipulation on their own, but some will need helpers because the tasks that are necessary to perform to achieve the manipulation are too strenuous or too time consuming or both. So they hire people with minimal skills and break up their task into smaller tasks that these people can perform (umm.. php programmers? jk). Let's call them D.

The reason this chain ever follows through is that the C's realize that they can improve the quality of what they do because of what B's have to say. Often enough B's say things which are of no use to C's. But currently they live off of a common pool of tips which C's throw their way in the hopes that the output of useful ideas continues.

Notice that teachers are not in this chain. Their function is to preserve existing knowledge in the society. And this is a chain of innovation. Actually, there are teachers in all 3 of B,C,D levels. They are the ones who train the next generation of aspiring members. Those who fail at the training generally end up one level lower, but I digress.

The historical confluence of events has put us at the point where the surplus of the benefits produced by the increased level of productivity is distributed as following:

B's desperately seek out A's and when they do find them the B's build castles in which the A's work undisturbed. Naturally that often leaves A's who are too far ahead undiscovered. But B's continued output depends on having occasional A's, so those able to become A's continue to have a chance to do so.

As I already said, B's live off the tips from C's. Often times they try to fool C's into thinking that what they have to say might be of potential use to C's down the line. They need the tips to survive, so they keep making often-unjustified promises to ensure that the pool of tips continues to exist.

And now we come to the player that makes it possible by doing the worst thing he can -- attempting to exploit both the B's and the D's... assuming he needs the D's for his task. The C has to keep B's well-enough-fed that they won't decide to wear the C hat as well as the B hat and refuse to share their information. The C's have to compete with each other for survival in their C position. They are the ones in control of what actually happens in the world. They have to constantly walk the fine line between being too slow to produce something and being outperformed by another C who got hold of more efficient information from some B. They draw from the pool of D's when they need them and the pool changes and adapts its basic skills to the needs of C's.

If you are still reading at this point, you have probably come up with a number of examples of people who fit two consecutive categories. They exist. They just happen to wear two hats. Sometimes they

I'm tired of your feigned idiocy.

[falconwolf]

This will be my final response.

Because of your idiocy this is my last response.

Falcon

"Hackers: Heroes of the Computer Revolution"

[falconwolf]

I believe it was in its first edition when I read it (in '93?), so it's been a while.

Yea, I read it when it first came out in '84. Back then I loved reading the magazine "Byte". My fav columns were Steve Ciarcia's "Circuit Cellar" who now has his own magazine "Circuit Cellar" and Jerry Pournelle's "Chaos Manor".

I might not quite remember the details like the name of Tech Model Railroad Club.

Because of an injury my memory is weird, I recall some things easy while other things I can't recall. A few years ago this proved to be a difficulty I had when I was taking Java classes. I'd do alright in the first class but then I could only recall a little bit for the second class so I'd start behind. I reread the book last year though, from where I am now all I have to do to get it is stand up and grab it from my book shelf.

Falcon

software protection

[falconwolf]

I still believe there needs to be some form of patent protection for software, but certainly not for the code or methods themselves.

If software patents don't protect the code, which is what copyright should do, or the methods then what do they protect?

Falcon

Re:software protection

[DrLang21]

They should protect the product just like anything else protected under patents. Just like a patent on a new type of engine protects the new type of engine and not the alloy, processes, or components used to make it. It only protects the engine as a whole unit. If you come up with a novel application, then you should have a time period to market that application and have a chance to make a return on it without competition. If you protect it under copyright only, minimal modifications could be done to create an equivalent competing product, thus defeating the purpose.

Re:software protection

[falconwolf]

They should protect the product just like anything else protected under patents.

If the product, software, isn't the code though then what is it? Is it what the software does? If so then wouldn't this prevent others from releasing software that does the same thing?, even if differently?

Falcon

I am tired of all the causality arguments.

[falconwolf]

Then why don't you provide studies or other evidence saying software needs patents for software to be created?

Falcon