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Software Patent Sanity on the Way?
Ars Technica is reporting that the traditionally silent US Patent and Trademark Office (USPTO) may be starting to turn things around. It seems that in recent action the USPTO has started to make it much easier to invalidate software patents with some saying that the abolition of such patents may be in the distant future. "Duffy cites four recent cases that illustrate the Patent Office's growing hostility to the patenting of software and other abstract concepts. While the USPTO hasn't formally called for the abolition of software patents, the positions it took in these cases do suggest a growing skepticism. In the first two cases, decided last fall, the United States Court of Appeals for the Federal Circuit (which has jurisdiction over patent appeals) upheld patent rejections by the USPTO. They were not software patent cases, as such. In In Re Nuijten, the court considered a patent related to an algorithm for adding a watermark to a digital media file. The Federal Circuit did not invalidate the claims relating to the watermarking algorithm itself; everyone seemed to agree that the algorithm was patentable. Rather, the decision focused on whether a digital signal could be the subject of a patent claim. The court concluded that it could not. A victory for common sense, perhaps, but hardly a rejection of software patents."
I've always believed that patents should include not just the idea being patented, but also details on how to recreate such an idea (ie. the prototype).
For physical objects, this means schematics. For drugs and such this means formulas. For software it means source code.
See how many companies will be willing (or in the case of patent trolls, ABLE) to patent software when they have to pony up a working implementation as part of the patent application (and thus public record).
I am also against 'secret' or 'partially secret' patents, how is someone supposed to know they are infringing on a patent if they can't get all the details on a patent?
More than embarrasing. Costly.
Like the saying, "Make hay while the sun shines" the fallacy that equates license to property will burn many more fools before we are done. Money in the bank is always decreasing in value. Using that money keeps it alive. Many profited in the domain name business, if they were wise enough to buy and sell them in a short lived market. The coming ICANN changes will soon massively devalue once treasured domains and those foolish enough to be left holding them, but not using them, will lose out.
The same is true of bogus patents. Fine if you were able to catch the wave of USPOs mistake that sparked the software patent war in the first place, and leverage ivalid patents, but disaster for those caught holding them in the belief that they are tangible property.
When the correction finally comes (and it will) it will wipe billions off the value of some companies. It couldn't happen to more deserving people of course. And perhaps that's the main reason it hasn't happened already. Software patents always have been, by widely recognised standards including those of UPSO itself, invalid. It's only the propagation of an error that has allowed some to profit meanwhile. The value of a market resulting from an error should not be justification to allow that error to persist.
That's an odd thing to agree upon, because algorithms are not patentable (search for `algorithm')
But methods are. I forget where I read this, but the difference was explained something like this --
Bob: So, algorithms are not patentable and methods are. ... algorithms are not patentable, but methods are ...
Lawyer: Right.
Bob: But what's the difference between an algorithm and a method? Aren't they pretty much the same thing?
Lawyer: Listen carefully
Bob: ?
The real issue, which most people avoid addressing, is that there is no practical distinction between software patents, chemical process patents, or machinery patents as a necessary consequence of basic theory. The reason this has become an issue at all is because there is increasingly little distinction in practice as well. Consequently, any dividing line is going to be arbitrary and capricious. Note that there is a similar emerging problem with copyright law, which is also premised on a false model of the universe that is starting to become obvious in practice. Yet few people are suggesting we solve this problem by rectifying the law with reality, instead opting to promote an alternative fantasy model of the nature of the universe that will ultimately break when it intersects with reality.
As every computer geek should know, there is no theoretical distinction between the machine, the program, and the data. At one time there was a practical distinction, but those lines have been blurring for many decades now. Any solution that pretends like these are theoretically distinct classes of thing solves nothing, as the cause of this problem was pretending a theoretical distinction exists where none does in the first place.
The problem I see with software patents is that people are patenting the wrong ends of their ideas (they're putting their makeup on their asses in other words).
Take for example Amazon's one-click checkout. The idea of a one-click checkout should not be patentable. Anyone number of people should be able to accept a single click to check-out, what should be patented is the system behind the checkout. The mechanism for tying in the user's login, prioritizing recently used shipping addresses and payment methods, etc... You need to patent the process or the invention, not an ethereal idea.
If I invent Widget A that performs task A, and am awarded patent "Widget A for performing Task A", and someone realized widget A will also perform task B without any modifications, they can't patent "Widget A for peforming task B", because I still own the patent for Widget A, which is all that really matters. I own the exclusive rights for Widget A, no one else can reproduce Widget A regardless of what they want use it for. Amazon didn't invent one-clicking (didn't Microsoft patent that recently?), so they can't say no one else can use one-clicking for checking-out.
It's similar to the patent that the adult-entertainment (read: porno) industry has been fighting for years. Some company patented the idea that videos could be downloaded from the internet. Problem is, since that company did not create the internet nor the http protocol nor the first web-browser, they didn't actually create anything that had to do with the content their patent covered. Improving upon an invention means changing the invention, not mentioning something else the invention could be used for. That's the problem with software patents. People are patenting what existing technology can do, but if they don't own the existing technology, they can't tell other people they can't use it for other things.
Eggs
Milk
Bread
Cat Litter
Soda
Or perhaps it is a problem that we have politicians that are easily bribeable. Sure corporations should be to blame for initiating the bribery, but the other side of the equation, those who accept the bribes, are just as guilty, if not even more so.
I think the only way to get the patent system perfect (or any other endeavor that man engages in to bring order to society) is to either have robots rule us (*insert memes here*), or make it profitable for the politicians to not accept sums of money (or campaign donations) to make loopholes. That would probably mean that we vote out everyone who engages in such behavior, no matter how good a leader they may otherwise be. A tall order.
SSC