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Cato Institute Critique of Software Patents
binarybits writes "I've written an article for the free-market Cato Institute about how patents impede innovation in the software industry. It points out that people tend not to realize how vast the software industry is. It's not just Google and Microsoft; virtually every organization has an IT department producing potentially-infringing software. Organizations as diverse as J. Crew and the Green Bay Packers have been sued for patent infringement. It's crazy to expect all these organizations to worry about potential patent infringement. Hopefully the Supreme Court's Bilski decision will lead to new limits on software patents."
do you really expect rational arguments in favor of the public good to be of any help against entrenched interests in this matter?
FTFA: They also sign broad cross-licensing agreements with other large firms promising not to sue one another. This has prevented patents from bringing the software industry to a standstill, but it's hard to see how the practice promotes innovation.
This is defense from a lawsuit by a company that makes useful products. It doesn't help against patent trolls.
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Patent attorney here. Yes, software patents shouldn't be there. Patents are there to stop people from sitting on their ideas. Stopping people from sitting on their ideas helps society, because it give society more knowledge. However, for software there is no need for this mechanism. There is no shortage of innovation because of lack of progress. If one person doesn't think of it, another one will. Also, the first sale doctrine doesn't work. If I have a patent on a resistor, and I sell it to you and you put it in a computer, you're free to do that. You don't have that with software. I can't buy a piece of, say, Word, and use it in my own programs. For the same reason, it is very hard to figure out whether your program is off the hook. Any aspect of a program could be patented. Finally, software patents are bad (with so called "wish" claims). I have programs developed for my company. It takes me 5 seconds to come up with an idea, but it may take the programmer 5 days, or 5 weeks, to implement. If I go with a software patent to a programmer, no time is saved.
The patent system is open source avant la lettre. An inventor has to provide all his knowledge (provide the best mode), in a way that can be replicated by an ordinary person skilled in the art, and it is available on line from patent offices. The "license" it comes with is a peculiar one (territorial limited/time limited), but it expires sooner than any copyright. But it is a rough tool. Fine for many types of inventions, including medical drugs, but not for software (or business methods).
Bert
You bring up an interesting point: I would think a software creator would prefer a copyright over a patent because copyrights last much longer even though they are not as encompassing - from what this layman understands (IANAL).
It is not either/OR. So, they get the copyright too. Double whammy.
Bert
You compare Google to MS. You HAVE TO BE KIDDING. They are not even in the same league. MS is trying real hard to acquire as many patents as possible, even BS ones. That is the sign of a company with nothing left, EXCEPT for GD lawyers. OTH, Google is not trying to pull that. THey are still doing great work.
This particular argument from the article is oft-repeated but weak:
"Software developers already enjoy strong copyright protections for their work, rendering patent protection largely redundant."
The exact same argument could be made for several classes of patent, such as chemical process patents, that people seem to generally consider legitimate patents in pretty much every country that has patents. If I am to believe that this is a compelling argument against software patents, then it is also a compelling argument against some other patentable areas. (Most arguments against software patents have this feature.)
On the other hand, a much more compelling argument can be made against "business method" patents (a subset of the suitcase called "software" patents) because they do not strictly define a machine. The reason algorithm patents (also part of the "software" patent suitcase) have long been acceptable just about everywhere is that they are strict abstractions of novel circuits (patentable material in virtually every country). As a general observation, most proponents of software patents are thinking of algorithm patents while most opponents of software patents are thinking of business method patents. The ambiguity of the term "software patent" muddies the context and makes intelligent discussions more difficult. It would help if everyone was more precise in their selection of terms.
If you're interested on the issue of patents,
http://www.gnu.org/philosophy/stallman-mec-india.html#header
It is not either/OR. So, they get the copyright too. Double whammy.
Bert
Or one step forward and two steps back. Copyright is both a positive right (it gives the author the right to distribute and sell his product under his own conditions) and a negative right (you can forbid others to do certain stuff with your copyrighted work). A single patent, which is a purely negative right (you only get to forbid others from doing stuff), from someone else can however completely undermine the positive rights conferred by copyright.
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Patent attorney here. Yes, software patents shouldn't be there. Patents are there to stop people from sitting on their ideas. Stopping people from sitting on their ideas helps society, because it give society more knowledge. However, for software there is no need for this mechanism.
[Citation needed].
Since State Street, there has been immeasurable innovation in the field of software. You've got nothing to back up this assertion.
There is no shortage of innovation because of lack of progress. If one person doesn't think of it, another one will.
The same could be said about any field of invention, including machines and compositions of matter.
Also, the first sale doctrine doesn't work.
... because it doesn't apply to patents. Probably, you're just including this to enlighten laypeople on Slashdot. I hope. First Sale Doctrine is in the realm of copyright.
If I have a patent on a resistor, and I sell it to you and you put it in a computer, you're free to do that.
Under what right? It's not First Sale. Rather, it would be a contractual right under our license (or assignment) agreement. On the other hand, you could sell me the right to say, hang your patented resistor in my "museum of electronics", while simultaneously not waiving your right to sue for infringement if I start using the thing as a resistor. Patent rights are significantly stronger than copyright, which is one of the reasons they're time-limited.
You don't have that with software. I can't buy a piece of, say, Word, and use it in my own programs. For the same reason, it is very hard to figure out whether your program is off the hook. Any aspect of a program could be patented.
Well, you could read the claims of the patent. That would make it very easy to figure out whether your program is off the hook. Sure, infringement analysis is still a two-step process, but it's not nearly as impossible as you, a patent attorney, claim.
Finally, software patents are bad (with so called "wish" claims).
Yes, in the same sense that mere diagnostic patents are bad. Sure is a good thing that current practice is moving away from those (and sure is a bad thing that SCOTUS didn't take it up in Metabolite). But that doesn't make all software patents bad, which is what you asserted.
I have programs developed for my company. It takes me 5 seconds to come up with an idea, but it may take the programmer 5 days, or 5 weeks, to implement. If I go with a software patent to a programmer, no time is saved.
If you got a patent on anything that took you 5 seconds to come up with, I think you're going to face severe problems in any suit over whether it's invalid over 35 USC 112. I mean, seriously, you think that something that takes someone skilled in the art 5 weeks to implement has been adequately described?
I've got a friend who just filed a cover sheet provisional for an invention... Now, he says, he just needs to find a programmer to design and write his software. See the problem? Same thing with your 5 second idea, unless it's so incredibly revolutionary yet simple that you can describe it in two sentences. And I find that unlikely.
The patent system is open source avant la lettre. An inventor has to provide all his knowledge (provide the best mode), in a way that can be replicated by an ordinary person skilled in the art, and it is available on line from patent offices. The "license" it comes with is a peculiar one (territorial limited/time limited), but it expires sooner than any copyright. But it is a rough tool. Fine for many types of inventions, including medical drugs, but not for software (or business methods).
I don't see why, particularly in light of your unsupported assertions above. Maybe an argument can be made (I would) that software patent
Anyone who's written a relatively small amount of software has very likely infringed on someones software patent. I happen to know for a fact I'm an infringer since I wrote software that did a simple zip-code distance lookup web program and years later found out someone actually managed to patent this. The application was taken down years ago because the organization I created it for ceased to exist and had extremely shallow pockets so there's no real danger of being sued over it. I don't recall how I found out about the patent, but it certainly wasn't from looking through granted patents.
The point being it's not that difficult to infringe on someones software patent and have absolutely no idea you've done so. It wouldn't surprise me in the least if I learned I've personally written code that infringed on dozens of other software patents. I'd be extremely surprised if the libraries I use every day didn't infringe on at least one software patent.
"Imagine the outcry if the courts were to legalize patents on English prose. Suddenly, you could get a "literary patent" on novels employing a particular kind of plot twist..."
Copyright on literary concepts is strong enough to survive conversion from book to film, even when nothing remains of the original dialogue. It's strong enough to cover original sequels. Read Harry Potter and the Unauthorized Sequel. The concept of "scenes a faire" covers the concept of literary "prior art" and prevents re-copyrighting the obvious. This is generally considered workable, although it took some litigation in the 1980s before the law settled down as regarding video game "look and feel".
"Small businesses and nonprofit organizations far removed from the traditional software industry have IT departments producing potentially infringing software. The Brookings Institution's Ben Klemens has" documented that this is not a theoretical problem"
Following the "documented" link leads to a set of PowerPoint slides by someone listed as "Senior Statistician, Mood and Affective Disorders, NIMH". (Where does the Cato Institute find these people?) He's grumbling about infringement lawsuits directed against the Green Bay Packers, Caterpillar, Kraft Foods, J. Crew, Linens and Things, McDonalds, Dole Food, and Oprah Winfrey. All occupy dominant positions in their industry. (Technically, the Green Bay Packers are a "small business", with only 189 employees, but the business is valued at $911 million.) None is a nonprofit.
Yes, software patents shouldn't be there. Patents are there to stop people from sitting on their ideas
Patents in general should not be there. Leonardo da Vinci and Archimedes did not "sit on their ideas, and they did not have patents to protect them.
"You can't allow somebody to commit the crime before you detain them." [Condoleezza Rice]
Copyrights are not enough. If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here. Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product. Therefore having patents is necessary.
The "exhaustion doctrine" is also sometimes known as the "first sale doctrine". While not identical to copyright first sale, it is analogous.
As far as State Street goes, have most of the software improvements since then been patented? No? Have some that would have happened anyway been patented in a bogus overbroad way by non-implementers? When I watch true innovators like RIM get their pants sued off by people who didn't do anything except sit around brainstorming 5 second ideas with their patent attorneys, I think it's pretty obvious the system is broken.
Most of the rest of your comment is pure claptrap as well. For example, if I buy a properly licensed special resistor, under the exhaustion doctrine I can pretty much do what I want with it, and the original licensor can't come back and get me for any infringement under the licensed patent.
It is nice to see Cato catching up to the real supporters of the free-market, who have been advocating for the abolishment of intellectual property for quite some time now.
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... a patentable media but a human right and duty to make use of to advance.
See: Abstraction Physics
Fine for many types of inventions, including medical drugs
It is NOT fine for software, but certainly it is NOT fine for medical drugs. Can anybody else enhance failing Tamiflu now when Roche holds all the key patents? Thousands might or have to die because Roche is blocking others from the drug developement, it might not be so, but certainly possible. Similar in software, I have to pay $600 for Adobe CS4 as nobody can't produce similar tools because Adobe have their 'patent portfolio' there.
The real problem with software patents is that the terms are too long. There is no reason to have 20 year terms on software patents. Patent terms should be adjusted according to the area of invention. It makes no sense that a drug that takes 15 years to bring to market gets the same patent term as a software program that takes 6 months. If the term for software patents was 2-4 years, they would not be nearly as problematic. Similarly, they would not be nearly as valuable, and fewer companies would apply for them.
Exactly. Show me somebody who's implemented a software algorithm from its description in a patent document and I'll show you a pig that can carry a family of six aloft across the Atlantic.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
Copyrights are not enough. If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X.
At this point he's infringing copyright just as much as when he'd making unlicensed copies.
Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product. Therefore having patents is necessary.
Well, no. It's only necessary if the competition stemming from this imitation kills the market rather than stimulate it. In general, more competition is better.
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As far as State Street goes, have most of the software improvements since then been patented? No?
Don't know. Quite a few have been. How many improvements are necessary to make a field patentable? Does the statute define a number? No?
Have some that would have happened anyway been patented in a bogus overbroad way by non-implementers?
That's happened with regard to machines and pharmaceuticals, too. If this is your reason to throw out software patents, then are you arguing for the end to the patent system in general?
When I watch true innovators like RIM get their pants sued off by people who didn't do anything except sit around brainstorming 5 second ideas with their patent attorneys, I think it's pretty obvious the system is broken.
Me too, particularly if you can write a patent specification that will overcome 35 USC 112 in 5 seconds. I mean, geez. Last one I wrote was 135 pages.
Most of the rest of your comment is pure claptrap as well. For example, if I buy a properly licensed special resistor, under the exhaustion doctrine I can pretty much do what I want with it, and the original licensor can't come back and get me for any infringement under the licensed patent.
That's not really "most of the rest". It's actually just one paragraph out of many, most of which don't refer to First Sale at all. Furthermore, it's obvious you didn't read the entire paragraph - specifically, look at the museum example. Your license to use a patented product may cover only certain uses. You don't get a magical exhaustion of all patent rights to use it in any way after that. This is different from First Sale doctrine, and that's the distinction I was attempting to make. If it wasn't clear, I apologize.
not in the software patents intrinsically. We've seen over the years here so many patent troll attacks and blatantly "vague" and "generic" patents that cover things so fundamental as things you'd learn about in your undergraduate computer-science curriculum reading well published books; things we call "fundamentals of computer science."
This brings an interesting point: it's not that you CAN patent software methods that's causing the problem, it's that the person(s) responsible for reviewing patent applications are NOT EXPERTS in computer science or software by any stretch. This allows companies to get away with gaining patents for vague, generic, and even systems which are completely and undeniably prior-art (all demonstrated within the past 1-2 months here on slashdot no less!).
You develop a new file format for storing data in a secure and efficient manner for your new application, so you patent it and the software used to manipulate it if it's so innovative to do something with the data and store it in that special manner that makes your system unique -- sure OK. But to patent searching in-order a tree or iterating an array looking for something in a specific manner is not something that should ever be patentable, these techniques and methods are well documented and completely public domain.
Even so, I completely agree with the author, copyrights are more than enough for software. In the above example, a copyright would've completely protected both the algorithm to create and access such a file format AND the file format itself -- intrinsically, and if another company just so happened to have that stroke of genius you had and stored information in a similar (albeit not identical) way, there would be no "infringement." This actually happens VERY often in the software industry, and it's ridiculous to assume that just because you came up with something that you were necessarily the first or that you will even be unique in your solution in the near future.
Patents in general should not be there. Leonardo da Vinci and Archimedes did not "sit on their ideas, and they did not have patents to protect them.
Leonardo da Vinci - 1452-1519. Birthplace: Florence.
Patents: 1421. Birthplace: Florence.
Patents in a modern sense: 1474. Birthplace: Venice.
And if you're going to hang your hat on the Archimedes point, the Greeks had exclusivity rights to profits for anyone who discovered new refinements in luxury in 500 BC, 223 years before Archimedes was born.
"If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here. Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product."
I missed the part where that's a bad thing.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
Copyright is both a positive right (it gives the author the right to distribute and sell his product under his own conditions) and a negative right (you can forbid others to do certain stuff with your copyrighted work).
No, copyrights are purely negative rights. They permit the author to forbid others from doing certain things with their work under certain circumstances. But they provide the author no affirmative rights to do anything with his work. An author's right to create or publish a work is an exercise of his right of free speech and press, no different than if he were to use the work of another in a manner not prohibited by copyright. In the US, this right is guaranteed by the federal First Amendment and by similar provisions at the state level.
This is why, for example, an author could create obscene works, or child pornography, or libel, and have a perfectly valid copyright on them (there's no morals clause to what is eligible for copyright), but not be allowed to publish or perhaps even possess copies.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Patent attorney here. Yes, software patents shouldn't be there. Patents are there to stop people from sitting on their ideas. Stopping people from sitting on their ideas helps society, because it give society more knowledge. However, for software there is no need for this mechanism.
[Citation needed].
Here's a bunch of citations I once collected (note that it also includes a few opinions of political committees, but those are clearly marked).
Since State Street, there has been immeasurable innovation in the field of software. You've got nothing to back up this assertion.
I think we can indeed agree that software patents have not killed the software industry. That's however not a very strong argument if you claim that software patents are necessary or even helpful.
There is no shortage of innovation because of lack of progress. If one person doesn't think of it, another one will.
The same could be said about any field of invention, including machines and compositions of matter.
It's however doubly so applicable to software, because software innovation requires much less investment in materials, works with an idealised abstraction (rather than with finicky physical bits), and consists almost exclusively of incremental innovation. A.o., the FTC report and the report by the National Research Council cited above go into more detail.
Well, you could read the claims of the patent. That would make it very easy to figure out whether your program is off the hook.
Of "the" patent? You mean of all the granted patents, right?
And actually, the risk of whether or not you infringe on a patent (software or otherwise) is simply not manageable in practice. How do I know? Because you cannot insure yourself against such risks. AIG, Lloyds and others have tried for a short while to offer such policies, and suffered losses up to 3000%! So if even those guys specialised in risk management can't determine the risk of infringing on a patent, what makes you think Joe the Programmer can do so with any degree of accuracy?
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No, he's not. The output of his reverse engineering will be the abstract method that can be covered by a patent, but not by copyright. For example, after looking at the disassembly for X, and performing more analysis using a debugger, he figures out the steps to perform X are: ...
1) send Z message to component Y
2) perform calculation C on message response
3)
There are hundreds of different ways to implement the above steps in source code. So he can easily avoid copyright infringement. Patents protect the steps listed above, not how it's implemented, and therefore stop leeches from profiting from other people's work.
Right, but competition usually means performing to equal or exceed your competitor. If you simply sit by and wait, then copy (steal) something innovative created by your competitor, that's not performing at all. It's just leeching off someone else's work to profit yourself. Soon inventors will get tired of getting taken advantage of, and only pursue inventions that take little time and money. That way, if someone copies their ideas, the loss won't be much. But society, as a general, will suffer more because many good inventions take more time and money, and those won't be created without sufficient protection.
I'm not sure if you're an attorney if you don't understand the basics of why patents exist. Patents cost time and money and unless the inventor gets rewarded fairly, he won't expend effort. Only the trolls sit on their ideas. And just because there are some patent trolls, does not mean every inventor is a patent troll. Patents are expensive to obtain and maintain, and most people who have one use it protect a product from competitors.
Wrong, inventions within in a successful software product will be copied within a few days without this protection.
Innovation doesn't happen by itself, people have to spend time and money on it. And patents ensure they get paid for their efforts.
Are you sure? Another person might not think up the same thing. That's why patents exist in the first place. I don't think you're an attorney at all if you can't understand that.
Patents are there to stop people from sitting on their ideas. ... However, for software there is no need for this mechanism. There is no shortage of innovation because of lack of progress. If one person doesn't think of it, another one will.
This is not in any way unique to software.
Fine for many types of inventions, including medical drugs, but not for software (or business methods).
My understanding is that the main argument in favor of medical patents is that the cost of FDA approval is so insanely high compared to the production cost once things are approved. Which is remarkably similar to software, where development is expensive but distribution costs a few cents per copy for bandwidth or a dollar or two for a CD in a cardboard box.
Personally, I think it's fairly unlikely that we'll get any useful guidance from the Supreme Court in Bilski as applied to software patents. While some of the case law related to Bilski does apply to software patents, the Supreme Court will probably limit itself to the narrow questions of Bilski (i.e., business method claims that are fairly obviously directed to abstract concepts. Software patents are enough of a gray area, and enough of a matter of public policy rather than established case law, that they will likely defer to Congress on that question (and good luck getting any new patent laws from them).
... who thought of the Green Hornet when reading the article headline
File under 'M' for 'Manic ranting'
Copyrights are not enough. If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here. Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product. Therefore having patents is necessary.
At which point he's put in at least as much effort as you did (reverse engineering is hard). Which means that he can't unfairly undercut you, so the only thing patents would do is hinder progress by letting you sit on your ass for 20 years.
No, he's not.
Yes, he is, at least in the EU. Reverse-engineering is forbidden by software copyright law here, except if all of the following conditions are true:
See article 6 of the EU software copyright directive.
The output of his reverse engineering will be the abstract method that can be covered by a patent, but not by copyright. For example, after looking at the disassembly for X, and performing more analysis using a debugger, he figures out the steps to perform X are:
At the very least, you are tainted when you do stuff like this. Phoenix didn't do clean room reverse-engineering for nothing when they re-implemented IBM's BIOS.
Right, but competition usually means performing to equal or exceed your competitor.
And this can be in many ways: customer service, price, time to market, branding, offered products etc.
If you simply sit by and wait, then copy (steal) something innovative created by your competitor, that's not performing at all.
Actually, that is exactly how competition works. You take what already exists, duplicate it and presumably add value in one way or another (from the list above). A certain amount of imitation is mandatory to have a competitive market.
Thanks to copyright and to the complexity of making well-working and polished software, innovators automatically have a limited lead-time advantage. Artificially extending this by many years using patents is only justifiable if otherwise the entire innovation of the industry would collapse. And there are simply no indications that this is the case, on the contrary.
It's just leeching off someone else's work to profit yourself. Soon inventors will get tired of getting taken advantage of, and only pursue inventions that take little time and money. That way, if someone copies their ideas, the loss won't be much. But society, as a general, will suffer more because many good inventions take more time and money, and those won't be created without sufficient protection.
It turns out that the above is simply not true in case of the software world. Competition (i.e., what you call copying, stealing and whatnot) is what drives innovation in the software industry, and the traditionally mild IP-regimes have been very conductive to this. See the overview of studies I posted in a previous comment.
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Since State Street, there has been immeasurable innovation in the field of software.
That is entirely meaningless. What you need to measure is (1) how much of that innovation would not have happened without patents, and (2) how much other innovation would have happened without patents.
Figure out how much software there is where once you know what it does or how it works, re-implementing it would take 100x less effort.
Figure out how much software was lost due to "chilling effects" where people are afraid to do anything, and how much was outright killed (like for example Blackboard has been trying to do to everyone else in that industry).
I'm guessing that (1) is very very small, and (2) is significantly bigger but still somewhat small when taken as a fraction of all software.
and write infringing software just because I like to stick it to the man.
Does that mean bank robbers deserve the money if they can penetrate the 20-inch vault door of a bank? Because penetrating that door is hard.
Here's a bunch of citations I once collected (note that it also includes a few opinions of political committees, but those are clearly marked).
Thank you for that... I'll have to read through them. Will get back to you.
Since State Street, there has been immeasurable innovation in the field of software. You've got nothing to back up this assertion.
I think we can indeed agree that software patents have not killed the software industry. That's however not a very strong argument if you claim that software patents are necessary or even helpful.
Yes, but it refutes GP's argument that software patents are bad per se. It's equivalent to an assertion that if we didn't have the death penalty, there would be a thousand-fold increase in the murder rate. Sure, that's an interesting thought, but there's no evidence whatsoever, so on its own, it doesn't really mean much.
The same could be said about any field of invention, including machines and compositions of matter.
It's however doubly so applicable to software, because software innovation requires much less investment in materials, works with an idealised abstraction (rather than with finicky physical bits), and consists almost exclusively of incremental innovation. A.o., the FTC report and the report by the National Research Council cited above go into more detail.
Sure, but this goes to my later statement that software patents may deserve a shortened term. It doesn't support GP's argument that software needs no patent protection because, after all, it would get invented eventually.
Well, you could read the claims of the patent. That would make it very easy to figure out whether your program is off the hook.
Of "the" patent? You mean of all the granted patents, right?
This was a reference to GP's argument that it was impossible to determine if you'd infringe a patent. Which I find a bit disingenuous, him allegedly being a patent attorney.
And actually, the risk of whether or not you infringe on a patent (software or otherwise) is simply not manageable in practice. How do I know? Because you cannot insure yourself against such risks. AIG, Lloyds and others have tried for a short while to offer such policies, and suffered losses up to 3000%! So if even those guys specialised in risk management can't determine the risk of infringing on a patent, what makes you think Joe the Programmer can do so with any degree of accuracy?
Joe Shmoe gets an insurance policy from Lloyds to cover him in case he infringes... At that point, he's indemnified. Therefore, he performs no due diligence, because it's expensive and he's fully covered against loss. I don't think it's particularly dispositive that people who are fully insured against any sort of loss act riskier than those who aren't.
Furthermore, while Lloyd's may be specialized in risk management, due diligence with regards to patents is another field entirely, requiring claim construction expertise rather than statistics.
Since State Street, there has been immeasurable innovation in the field of software.
That is entirely meaningless. What you need to measure is (1) how much of that innovation would not have happened without patents, and (2) how much other innovation would have happened without patents.
Agreed. And because that sort of vague hand-waving "what if" is entirely unmeasurable, you apparently agree with me that GP's blind assertion that software patents stifle innovation is unsupported by any evidence whatsoever.
Here's another one: say I said that if we incorporated the death penalty for shoplifting, there would never be any shoplifting. And for proof, I offer that there's shoplifting now and we don't apply the death penalty. Doesn't matter, it's still an unsupported assertion.
Figure out how much software there is where once you know what it does or how it works, re-implementing it would take 100x less effort.
I'm not sure what your point is. I can take any issued patent, read it, and understand what it does and how it works. I can then re-implement it with 100x less effort. For example, I know how to build a steam engine without ever having researched one. I likewise know how to build an offset-differential gear for a rear-wheel drive vehicle, without ever having researched one. Could probably draw a diagram, even. Should those things not be patentable?
Figure out how much software was lost due to "chilling effects" where people are afraid to do anything, and how much was outright killed (like for example Blackboard has been trying to do to everyone else in that industry).
Go ahead, please. I'm claiming that those what-if numbers are unknowable, so GP's assertion that "all software patents are bad 'cause they stifle innovation" is completely unsupported by any evidence. It doesn't mean it's wrong, it just means there's as much support for the statement as there is for claiming there's an invisible pink unicorn standing behind you.
I'm guessing that (1) is very very small, and (2) is significantly bigger but still somewhat small when taken as a fraction of all software.
Guessing - operative word here.
Innovation doesn't happen by itself, people have to spend time and money on it. And patents ensure they get paid for their efforts.
Except of course, that you routinely see things like the burst of innovation in steam engines that happened immediately after Watt's patents expired (quotes from here):
Does that mean bank robbers deserve the money if they can penetrate the 20-inch vault door of a bank? Because penetrating that door is hard.
Is this a serious question, or are you just trolling?
The purpose of patents (and copyright) is to promote innovation. They are not natural rights like life, liberty, etc. If they do not promote innovation, they should not exist.
It's equivalent to an assertion that if we didn't have the death penalty, there would be a thousand-fold increase in the murder rate. Sure, that's an interesting thought, but there's no evidence whatsoever, so on its own, it doesn't really mean much.
You can look at places without the death penalty and see that that claim is absurd.
You can also look at history and at other places to see what happens to innovation when there are no patents, or when patents expire. Which seems to show that innovation goes up slightly in such cases.
At that point, he's indemnified. Therefore, he performs no due diligence, because it's expensive and he's fully covered against loss.
But he never does that anyway, because if he did ask someone knowledgeable they specifically told him that looking can triple his liability and is therefore a really bad idea.
Yes, but it refutes GP's argument that software patents are bad per se.
No, it only proves that they (or at least the way they are used by the majority of patent holders at this time) are not bad enough to kill off the industry. It does not in any way refute the argument that they are bad.
It's equivalent to an assertion that if we didn't have the death penalty, there would be a thousand-fold increase in the murder rate. Sure, that's an interesting thought, but there's no evidence whatsoever, so on its own, it doesn't really mean much.
There are many countries without a death penalty and with lower murder rates, which is an indication that this would be an incorrect assumption. The same goes for software patents: economic studies (Bessen&Hunt, also in the overview I gave in my previous post) show that companies investing more in patents, invest less in R&D (the rest is spent on patenting and subsequently regained via rent seeking). They also show that the number of court cases is exploding (last slide).
An important fact to also keep in mind is that having patents an sich causes overhead. All money spent by the industry as a whole on obtaining patents, licensing negotiations, court cases, legal counsel regarding patents, etc is money that cannot be spent on R&D, customer service, etc. So having patents starts out at a loss, and it has to have really large positive effects to end up in the black again.
It's however doubly so applicable to software, because software innovation requires much less investment in materials, works with an idealised abstraction (rather than with finicky physical bits), and consists almost exclusively of incremental innovation. A.o., the FTC report and the report by the National Research Council cited above go into more detail.
Sure, but this goes to my later statement that software patents may deserve a shortened term. It doesn't support GP's argument that software needs no patent protection because, after all, it would get invented eventually.
It does support that argument, though it obviously cannot conclusively prove it. Where is your evidence that a shorter term is required rather than no possible patent attacks on re-inventors at all?
Donate free food here
Software Patents are no more than Business Land Mines in the form of Monopolies. The whole idea of monopolizing an idea is ludicrous. The idea of choosing what's innovative and what's not is absurd. If necessity is the mother of all invention (and it usually is), then one man's "innovation" is another's necessity.
Business-wise, they are nothing more than government granted monopolies, and hidden land mines. They are totally ludicrous from a social perspective because they hurt everyone.
I lied.
They don't hurt *everyone*. Patents feed IP (Intellectual Property) lawyers and subsidize the legal industry. Think of them as a legalized tax to subsidize IP lawyers and law firms (while clogging the courts, impeding software engineers, and increasing software business risk and expense).
Which brings me to a first-hand observation: When software developers fought the patenting of software at the USPTO hearings, one side of the room was lawyers, and the other side was software engineers. One side was in favor of institutionalizing s/w patents, the other against. (Guess which side was which.) Aside from the merit of anyone's arguments, the sides were well represented since the room was crowded on both sides of the aisle (how did people know which side they belonged on!?).
I lied again.
The front table... you know... the one making the final decision... was ALL LAWYERS. So much for balanced representation and due process.
Yup. Foregone conclusion. The all lawyer council hosted the hearings, presented the issues like it was being debated, and then rubberstamped it into existence. We're still suffering, without a fix in sight.
You don't believe me? Just ask Bruce Lehmann. He ran the USPTO, railroaded software patents into existence using his position. Oh, I'm sure he'll lie and tell you he did no such thing, but he did. (Oh, and see WTO and DMCA for follow-ups by same guy. He's not a brainjob by my reckoning, just a puppet.) I believe the legal industry pulled a fast one on Joe Public with software patents, and is still raking in the big bucks while innovation, good business, good government, and consumer product development suffer.
To CATO? "I have never seen a more wretched hive of scum and villainy"... these are the people who propose dismantling all that is good in the state in favour of entrenched power interests. The public good, unless all one cares about is a public good that demands no virtue, no sacrifices, is far from their mind.
For every problem, there is at least one solution that is simple, neat, and wrong.
The idea is that Roche developed Tamiflu, and 20 years from now anyone can make Tamiflu. At worst, society is losing a 20 society-disease-years over the matter (that's a fun unit, innit?). Afterward, society gets to benefit from a new flu drug (infinite society-disease-years, or something like that - and probably with a bigger unit of Society to boot).
Consider the alternative, where there is no such patent available. Does Tamiflu, or an enhancement, get created at all in this scenario? Sure! Of course! .... eventually. But academic / government-sponsored research surely cannot hope to replace the entire research output of the pharmaceutical industry! (Even if it is trendy these days to demonize them as a bunch of leeches on society incapable of generating anything but drug advertising, they actually do pay some very smart, highly educated people high-five/six-figure salaries to do research.)
This is why, as a young person, I like 20-year patents on drugs and pray that they will remain around during my lifetime, so that there will be more drugs (and medical procedures etc) - both brand new and 20 years old - available to me when I'm old and need them most. The alternative has a very real chance to negatively impact my future quality of life... and that of my children, at such time that I have any.
The World Wide Web is dying. Soon, we shall have only the Internet.
That's making some assumptions which aren't necessarily valid. The reason why one needs to have a patent in the current model is because one has to have patents to defend against other individuals who hold patents and pay off the cost of development.
A system where a single entity paid for the cost of R&D and testing on the basis of results, rather than for the patent rights itself isn't necessarily going to have less innovation. It would just have to either be paid for by the federal government or by all the medical providers.
There may be other possibilities, but to paint it as absolutely necessary rather overstates the necessity.
That's not true, software patents shouldn't be granted unless the individuals applying for them live up to the normal standards, which they don't. They don't disclose the actual mechanics. In a similar vein, business patents shouldn't be granted because they represent an incentive in and of themselves and are more useful for stymieing competition than actual progress.
Of course, I'm serious. Your statement insinuates the reverse engineering person somehow has legal rights to the work of others just because reverse engineering the invention is hard. That's like saying robbing banks is okay because breaking through vault doors is hard.
Government and business want innovation to gain more power and wealth. The consuming public wants innovation to improve their life, by making certain tasks easier or more convenient. But where do government, big business, or consuming public get off thinking they have a natural right to these innovations, to get them for free? All patents do is ensure the inventor, the person giving the benefits, is adequately compensated for his work, that's all. Without patents, the inventor is just a slave, working for free to improve the life of others, but receiving nothing in return.
Where do individual authors get off thinking that their incremental improvements on the ideas of other inventors which they released out into the world as a working product get to keep other people from making incremental improvements on top of it and distributing their own products?
Where do authors get off thinking they are doing more than riffing off someone else's chord?
And where do they get off thinking the government needs to enforce a monopoly for them on these derivative ideas?
Your statement insinuates the reverse engineering person somehow has legal rights to the work of others just because reverse engineering the invention is hard.
No.
I am saying that they have that right by default (because knowledge fundamentally cannot be owned), and that reverse engineering being hard means that the fundamental justification for the patent system ("to promote the progress of science and the useful arts") cannot justify taking that right away in such a case.
All patents do is ensure the inventor, the person giving the benefits, is adequately compensated for his work, that's all.
No, they do not. They attempt to do so, but don't do a very good job and have a huge number of bad side effects (like blocking other inventions, turning the common case of simultaneous invention into a lottery, adding overhead to basically all research, etc).
"Don't know. Quite a few have been."
Bullshit. Most of fundamental computer science work has been done before 90-s (advent of widespread software patents).
Besides, Europe doesn't have software patents. Don't see the lack of innovations there, though.
Copyright is both a positive right (it gives the author the right to distribute and sell his product under his own conditions) and a negative right (you can forbid others to do certain stuff with your copyrighted work). A single patent, which is a purely negative right (you only get to forbid others from doing stuff), from someone else can however completely undermine the positive rights conferred by copyright.
Copyright does not "give[] the author the right to distribute and sell his product under his own conditions". George Harrison got a copyright on "My Sweet Lord", yet he didn't have the right to distribute it because it was too similar to "He's So Fine" by Ronald Mack, which had been widely published. The problem of subconscious copying in copyright law, for which the key U.S. case is Bright Tunes Music v. Harrisongs Music, parallels that of independent invention in patent law.
The only reason that the software industry hasn't been brought to a grinding halt by patents is that software is generally opaque; few other than the maker knows the details of how it works (and yes, that applies to open source as well, to a large extent). So even the patent holders have no idea how much infringement is going on. The exceptions are where the patent holders have managed to erect a tollbooth across a standard, as with LZW and a few others; then they know that anyone implementing the standard is infringing their patent, and they can pounce.
"I've written an article for the Cato Institute, a faux think-tank that whores itself out to any large organization with money. I hope that by temporarily aligning myself with one of Slashdot's group taboos, I can gain your trust and you won't notice when I eventually shove a shiv into your back."
"But where do government, big business, or consuming public get off thinking they have a natural right to these innovations, to get them for free?"
That's not even a "natural right" but a "natural fact": once you make it public, *is* public.
"Without patents, the inventor is just a slave, working for free to improve the life of others, but receiving nothing in return."
I claim bullshit on that. What's the problem for an inventor working on wages for, let's say, IBM? If they pay me for it, I'll do it; if I think I'll be able to get a fair return of investment I'll do it. If there's no money to get from it, I'll just do something else. You know what? I find farting funny and sometimes even liberating, but I don't fart for a living. Do I claim "without fart taxes, the farter is just a slave, working for free to provide farts to others but receiving nothing in return"? No: I just look for something else for a living.
Patents protect the steps listed above, not how it's implemented, and therefore stop leeches from profiting from other people's work.
Physicians can use leeches to treat a patient for profit, but leeches themselves cannot profit; they are annelid worms and not sapient.
Seriously though, the ability for a patent to be used against an independent inventor opens up an opportunity for a different kind of leech: the patent troll.
If you simply sit by and wait, then copy (steal) something innovative created by your competitor
You're assuming that copying constitutes stealing. Like Mr. Stallman, I dispute this assumption. What law dictionary or statutory definition uses "steal" to mean "copy"? I haven't examined 35 USC (U.S. patent law) closely, but 17 USC sure doesn't.[1] On the contrary, see Dowling v. United States, 473 U.S. 207 (1985), which excludes unlawfully made copies of a copyrighted work from statutes that refer to "stolen property".
But society, as a general, will suffer more because many good inventions take more time and money, and those won't be created without sufficient protection.
Does it take "sufficient protection" to get something like the Vorbis audio codec created?
[1] There are minor exceptions. One is the title of the No Electronic Theft Act of 1997, which expanded the offense of "criminal infringement of a copyright" to cover the trading of works for other works, but titles are not binding. I seem to remember some state copyright statutes at the state level defined "theft" to include infringement of copyright in a sound recording published prior to 1972, but old sound recordings are not at issue presently.
I don't know what Cato is... but I think everyone in /. have visited http://stopsoftwarepatents.org/ and http://www.ffii.org/ ?
"Wrong, inventions within in a successful software product will be copied within a few days without this protection."
As in Operative Systems are not protected by patents, therefor anyone could copy Microsoft within few days, therefor *this* will be the year of Linux on the desktop?
C'mon: big software names have reached their status *without* patents; I think this would offer you some food for mind.
Remind me again: why do people use Open Source licenses rather than making everything public domain?
GLaDOS for President 2016! "Well here we are again. It's always such a pleasure." -- GLaDOS, 2011
Is a forest of intellectual ideas that the neocons stripped
for decorating their offices and then left the forest to rot.
The neocons stole libertarian rhetoric and boiled it down
to "tax cuts" and "Deregulating business".
As Ayn Rand would say the libertarians selling themselves to the republican party
"is like casting pearls before swine and not even getting a porkchop in return"
Even as a liberal I appreciate the value of an honest independent libertarian movement keeping
government honest.
>>I missed the part where that's a bad thing.
Patents have a good side: they keep large established companies from just stealing from the little guys. Let's say I develop a new way to extract gold from the ocean. 3M, instead of paying me for the idea, steals it, and then makes billions while I linger in obscurity, even though I was the guy that did the heavy lifting on the process.
In software patents, by contrast, the opposite is happening. You have people that are independently working on projects getting patents on essentially daily work, and then using them either defensively (to protect against lawsuits by people who have done similar stuff) or offensively (to sue people who will do similar stuff). Companies patent thousands of run-of-the-mill ideas every year, and hope they get lucky and do some task before someone else does, even if it is a perfectly obvious solution. A friend of mine works for Microsoft - at the end of every project, they review what they did and patent anything that seems relatively interesting. Which isn't an uncommon process, either, in large corporations.
So what happens is the opposite of what patents are good at (protecting small guys from being beaten up by big guys) - if you're just working on your own, not copying anyone else's work at all, you'll probably infringe hundreds of patents that other people did.
This is not a good situation for our industry to be in.
So you're comparing farting to inventor's work? what an ungrateful retard for spitting on those who have helped you. Several key inventions, like the steam engine, electricity, airplanes, cars, electronic transistors have launched entire industries that have provided jobs and other material benefits to millions of people for over a century. Without these inventions, these jobs wouldn't exist, these industries would not exist, and you and your parents, even the govt., would probably be poorer. Nobody is asking for a handout, just what is rightfully, and justly owed.
My understanding is that the main argument in favor of medical patents is that the cost of FDA approval is so insanely high compared to the production cost once things are approved.
While the research and development to bring a drug to the market may be expensive, pharmaceutical businesses spend more on marketing and sales than on research.
This is a sore spot for me, the National Cancer Institute spent $183 Million to develop Taxol yet Bristol-Myers Squibb (BMS) only paid $35 Million for exclusive rights to Taxol. By 2000 it "achieved global sales of almost $1.6 billion". BMS was saying the wholesale price for Taxol was $6.09 per milligram yet a generic maker was able to make it for $.07 per milligram. That is more than $6 per milligram profit.
Falcon
Should there be a Law?
Thats like saying that there are 5 AV vendors but you need all of them installed because they can't generate signatures that match the others, but don't worry, in 20 years they will give us access to all the signatures they are using now....
Wow, thants handy
Normal people worry me!
Innovation doesn't happen by itself, people have to spend time and money on it. And patents ensure they get paid for their efforts.
I will not spend tyme, money, and effort to develop software if I fear I will be slapped with a patent infringement lawsuit. Nor will some small businesses and individual programmers. When companies take out software patents purely as a precautionary measure that holds up progress as well as adds costs.
On the other hand FOSS has shown programmers and software businesses can make money without software patents.
Falcon
Should there be a Law?
Several key inventions, like the steam engine, electricity, airplanes, cars, electronic transistors have launched entire industries that have provided jobs and other material benefits to millions of people for over a century. Without these inventions, these jobs wouldn't exist, these industries would not exist, and you and your parents, even the govt., would probably be poorer.
And without patents, those inventions would have been more widely available sooner, with more improvements. You can find a number of actual historical examples here.
Nobody is asking for a handout, just what is rightfully, and justly owed.
You bloody well are asking for a handout, and at a net cost to society. Go look at history, note the prevalence of simultaneous inventions. Look at the innovations in software before it was considered patentable. You're seriously trying to claim that you're that indispensable, that only you can come up with a particular idea?
[Citation needed].
FOSS. There are more than 200,000 software projects on SourceForge alone. Freshmeat has thousands more. Now I'll admit I bet most of them are abandonware or are little used but software was being programmed before patents were ever issued on software.
Patent rights are significantly stronger than copyright, which is one of the reasons they're time-limited.
Both copyrights and patents were originally issued for 14 years with one 14 year extension possible in the US. It's only because politicians, both Democrats and Republicans, were in the pockets of the MPAA and RIAA that copyright terms were lengthened. The industries now have a friend as the Vice President, Biden.
Falcon
Should there be a Law?
Cato is actually a big MS supporter, Bill Gates visited them, probably supported or supports them financially.
Maybe it's not a coincident that Cato comes out with criticism against software patents when Microsoft has just been found violating a software patent and threatens their core business.
But most "ideas" in software don't deserve a patent as they are methods and algorithms. We don't patent math.
Anarchists never rule
The only ones I could see supporting software patents are some patent lawyers.
Well, then we are screwed, because tort reform of any kind certainly isn't in the interests of the current political party that happens in be in power in Washington.
Let me first get this out of the way, I don't consider patent reform as being anything like tort reform. And I certainly don't want to make it easier for someone to get away with messing up a person's life. Because of someone's recklessness I was left with a disability when I survived an injury I wish I had died from.
On second thought, I'm too angry to recall what I was going to write so there is no follow up.
Falcon
Should there be a Law?
If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here.
Copyright is enough. With first mover advantages if you can't make enough money to stay in business that's your fault. So what if a competitor releases a compeating program, either you innovate and provide a better product, offer a lower price, or you go out of business. You are not owed a living only an opportunity to make a living, opportunity not outcome is a right.
Software patents are not necessary!
Falcon
Should there be a Law?
not how it's implemented
No, patents protect specific implementations not ideas. In a case brought by i4i against Microsoft a Texas jury ruled in favor of i4i saying MS infringed on a patent. The judge issued an injunction against MS that gives MS "two months to pursue an appeal, craft a settlement, or implement a technical workaround that removes the technology found to be infringing." Notice the clause "implement a technical workaround".
Since slashdot like car analogues I'll use my own. Open the hood and examine all the part of the engine. They all have brakes, most have alternators and starters as well. Now look at those parts closely, many have plates with patent numbers. A starter in a GM car will have patents that are different than a starter from a Ford. Yet they do the same thing, the only thing different is the implementation. The general principles are the same only the implementation is different. I rebuilt the 4 barrel 350 ci V8 in my old Monte Carlo, and after that I could have done the same with someone's Ford Mustang.
As Dana Blankenhorn writes in the article "A modest proposal on patents":
"My point is that, while my bird feeder is patented, there is no patent on the idea of a bird feeder. Just on the way this one works. Birds are not starving due to this guy's patent."
"If this were software, they would be. Software doesn't just protect code, but the idea of what the code is trying to do. So software patent holders try to hold up whole swathes of technology progress, and as we saw in the RIM case, they sometimes get away with it."
If you simply sit by and wait, then copy (steal) something innovative created by your competitor
That is not stealing, the owner still has his or her patent. All that is is infringement.
Falcon
Should there be a Law?
At which point he's put in at least as much effort as you did (reverse engineering is hard).
Does that mean bank robbers deserve the money if they can penetrate the 20-inch vault door of a bank? Because penetrating that door is hard.
This is an asinine comparison. With copyright infringement the patent holder has suffered no damage and still owns the patent. The bank robbers have wrecked the bank and have stolen other people's money.
Falcon
Should there be a Law?
All patents do is ensure the inventor, the person giving the benefits, is adequately compensated for his work, that's all.
Those functions are covered by copyrights therefore software patents are not needed!!!
Falcon
Should there be a Law?
Nobody is asking for a handout, just what is rightfully, and justly owed.
You ARE asking for a handout and what is not rightfully yours, a monopoly. Information in not owned by anyone. If you feel you'll miss out by sharing your ideas then don't share them. Once you do share them you still have them, but so do others.
Falcon
Should there be a Law?
Meanwhile, hopefully while your competition is bumbling around trying to produce their me too of your 1.0 product, you're working on 2.0 so that by the time their product comes out it's obsolete.
In my opinion a patent should only be in the form of a solution to a given problem such that you could present thus problem to individuals ignorant of the given solution and compare their solutions (if any) to the given and determine if a patent is obvious.
So if you think any sophomore level computer science student could solve a given problem then it should be easy and inexpensive to prove that is the case.
This idea was copyright 2008 JimboFBX. It may not be reproduced, retransmitted, or disseminated in any form without express written consent of JimboFBX. All rights reserved. Patent Pending.
> Copyrights are not enough. If X is the new innovative piece of code within a program, a competitor can
> buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it
> works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here.
> Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product.
> Therefore having patents is necessary.
Admittedly, this applies directly to only the US (as far as I know), but in America, patents are constitutionally justified on purely utilitarian grounds. In theory, all it would take to completely abolish many patents would be a Supreme Court ruling that one or more laws passed by Congress empowering the USPTO to act on its behalf, and the policies enacted to enforce those laws, fail to advance this purpose (and ESPECIALLY if they actively harm it).
This is in direct contract to continental Europe, where they're historically been viewed as a moral right grounded in natural law.
Plus, it's not like decompiled code would be completely without protection just because it's not a literal copy of the original program code. If you disagree, just TRY publishing a book that even vaguely involves a young sorcerer named "Harry". Or, for that matter, a rodent named 'Mickey'. Or, for a really great double-whammy from two sets of lawyers, a teenage gerbil who goes to sorcery school and plays a lacrosse-like game on flying brooms that walk and carry buckets of water in their downtime...
Outstanding!!!
Lawyers have managed through case law to twist the purpose of patents so far beyond their original intent that, as you can see here in this thread, people believe today that they have a right to monopoly control over ever piddly assed idea they can come up with and somebody should pay them continuously for being such an ass.
Article 1, Section 8 of the United States Constitution:
The Congress shall have Power ... 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;
The author of the original article is therefore correct in his assessment that software patents should be ruled out by the Supreme Court. The market in and of itself is promoting the progress in computer software science as is noted multiple times in the article. Software patents on the other hand are impeding progress by presenting legal barriers to progress.
It is plain to see with the current legal mire involving software companies that software patent law most definitely does not "promote the Progress of Science and useful Arts" in the realm of software and is therefore unconstitutional.
Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product. Therefore having patents is necessary.
Lazy, blood-sucking, uninventive tard.
Patents have a good side: they keep large established companies from just stealing from the little guys.
What planet are you living on? Can you site even one court case where patents, especially software patents, protected "the little guy"?
Nobody is asking for a handout, just what is rightfully, and justly owed.
Why do I get the feeling you, personally, have never produced a single product or service of any value whatsoever?
Wrong, inventions within in a successful software product will be copied within a few days without this protection.
Must be quite a simple, blindingly obvious "innovation" if it only takes a few days to copy it.
"So you're comparing farting to inventor's work?"
You misleadingly forgot about the previous sentence, didn't you? Anyway, while not identical, they share in common enough for the comparation I stablished, or else I wouldn't do it, yes.
"what an ungrateful retard for spitting on those who have helped you."
Help... me? They did it to help me? Well, I have news for them, then: guys, I didn't ask for your help. But, obviously, they didn't do it to help me but for their own profit, be it by means of patents or -and that's the interesting point, by any other means. As long as there is the potential of profits, somebody will try it. If the invention is good, there's the potential of benefits; if the invention is no good, well, you already read my comparation.
"Several key inventions, like the steam engine, electricity, airplanes, cars, electronic transistors have launched entire industries that have provided jobs and other material benefits to millions of people for over a century."
And those that launched it already got part of the benefits. And -this is another interesting point, if those that invented it didn't get returns of benefits, they could very properly spend their time anywhere else and, probably, others that were in the position to get the benefits would developed it. You chose very bad examples in that all those inventions and discoveries (you really put at the same level "electricity" and the "steam engine"? My fart comparation is not so out of target) already were "in the air" and for the most part the History winner, the name we remember, is just the one that better make it to the public and/or put the invention under proper industrial methods, both circumnstances out of the reach of the patent system. In other words, without Daimler, Watt or Wright brothers we can be certain that we would still have cars, planes or steam engines.
"Nobody is asking for a handout, just what is rightfully, and justly owed."
Like a state-granted monopoly as in "your invention is indeed so worthy that without Government help you wouldn't be able to make a penny out of it"?
>>> Well, you could read the claims of the patent. That would make it very easy to figure out whether your program is off the hook.
>> Of "the" patent? You mean of all the granted patents, right?
> This was a reference to GP's argument that it was impossible to determine if you'd infringe a patent. Which I find a bit disingenuous, him allegedly being a patent attorney.
I meant to say that it is not easy to find because of the terminology used. With terms like "data storage means" etc. you get tons of hits, and it is hard to find relevant patent (applications). If you want to convince an investor that it is unlikely you're infringing a patent, that doesn't help. Secondly, I can easily read a claim of a software patent and think: What are they talking about? You rarely have that kind of problems with, say, mechanical inventions. And then, even for mechanical inventions it can take me a couple of hours PER PATENT to establish whether there is infringement or not, also because you have to check the description.
My arguments were logical, I think.
Society really wouldn't be helped with one word processor capable of showing pictures and another one capable of showing rich text. Customers want it all in one program. Because software is all developed by the company, every aspect is a potential thing that could mean a high risk of infringement. Want to try to license your way out of it? No problem to find 10 companies that think their software patent is important enough to earn them 1/5th of your profit.
This situation rarely arises for mechanical inventions. Say, you invent a new plastic coffee cup. You buy the molds, the plastic pellets etc and by the act of buying them from a legitimate source you are allowed to do what you want. There is no need to check whether there is a patent on the plastic's composition, or a patent on the molding machine. So, there is much less to check, and what needs to be checked, can be checked more easily.
I have to admit that there are pretty nifty software ideas that qualify as inventions worthy of a patent even in my book. But then, coming up with a program implementing the idea already gives the developer (be it person or company) a tremendous headstart. As I said, patents are a rather blunt tool. For software, I think society is better off without patents.
Bert
>>What planet are you living on? Can you site even one court case where patents, especially software patents, protected "the little guy"?
Smoke a little less of the Slashdot lotus root - the system does work some of the time. I personally know two engineers who developed technology, marketed it to larger companies, got ripped off, and they successfully sued. One was a neural network for creating a sort of image dictionary for image compression, the other was some sort of RF engineering thing that I don't understand. In both cases the guys ended up making about a million from their patents.
Citation please!
OK, how about changing patents to make lisencing standardised? That way, Roche would get paid, and everybody could make Tamiflu. The only penalty on society would be a mark-up on the costs of _all_ versions of the drug.
This way, it would be possible for research and production/marketing to be completely seperate companies, even. So the marketing department wouldn't influence research quite so much.
Me too, particularly if you can write a patent specification that will overcome 35 USC 112 in 5 seconds. I mean, geez. Last one I wrote was 135 pages.
Writing a patent specification is an anti-productive activity. You'd have to subtract the time it takes to write one from the effort it took to come up with the idea. So these 5 second bullshit troll patents have a negative value for everybody but the troll.
The idea is that Roche developed Tamiflu, and 20 years from now anyone can make Tamiflu. At worst, society is losing a 20 society-disease-years over the matter
Except that this is very often not how it works. It looks nice on paper. Meanwhile in the real world, the very same drug companies come up with studies at the end of their patent lifecycle that suddenly find negative side-effects of these drugs. Lo and behold, just before these drugs would become cheap generica, your trustworthly federal drug administration prohibits the use of said drug due to the newly proven side-effects. Incidentally the original drug company already has a "new and improved" successor in production.
Isn't it great that our systems cannot be cheated? Oh how great this is for us all.
Uh, my next door neighbor, who got a job at REMEC? Want to come over and talk to him or something? There's no news article about it. I can't recall the name of the other guy we used to work with, but I know he got money from CUBIC.
Asking for citations is well and good, but I think you might want to examine your unfounded belief that patents never favor the small guy first. As Socrates said, the unexamined life is not worth living.
I'm not saying there's plenty of other examples as well. A friend of the family (now a respected EE prof at USC) had this technology that was pretty neat. So SAIC hired him for a week, had him write his code or whatever for their project, and then fired him. Since he'd done it as part of a work for hire or whatever it's called, he just got one shitty paycheck and they got his technology. He recently passed the bar to become a lawyer because of that experience ("Never again...").
The idea is that Roche developed Tamiflu, and 20 years from now anyone can make Tamiflu.
Except that isn't how it works anymore. When the 20 years is up, Roche simply signs agreements with and pays generic drug manufacturers not to market a generic form of Tamiflu. Not exactly on topic, and I tend to agree that a working 20 year patent on a drug with regulation on the generic buyout shenanigens is ultimately better than no patents at all, but just thought I'd throw that out there.
Yeah, because he heard about it in a newspaper. These were his friends, there's no citation needed for that.
We don' have software patents over here, but It's a subject that I fallow regularly here on Slashdot. I found this analogy about English prose one of the bests I saw to inform non computer literates about this subject.
Take my example. I'm currently writing an FTP client for learning and contribute purposes. One of the things about FTP is that each server vendor as some kind of slightly different application. So if I want to make a client that has some kind of success I have to test many of the servers(closed sourced and open) out there, so my program can parse every line. I've mostly wrote this software from scratch fallowing the RFC specifications.
At some point I've downloaded the source code of some popular open-source FTP clients(FileZilla, KFtpGrabber), to analize the code and look for different approaches. It was surprising to see that while both this programs and mine are very complex applications, and that my work is completely original, we have very common programming techniques(and code) on several identical subjects(even the variables have the same name sometimes).
What I've realize is that for some problems there are out there have just about one or two best solutions. No one can argue that my creativity is not original. I've only looked at the code of these programs after the engine was almost written, but hypothetically if at any point some FTP client program or idea was patented my program wold violate that for sure(although it would not violate copyright since it's not the same code).
Patenting code is like patenting solutions to problems and it could be justified if there were many different solutions out there but the reality is that many problems have only one or two correct approach.
It would be great to have copyright in software.
The richest person in the world would be the first person who wrote "for(inti=0;i 100; i++)"...
This research doesn't seem to agree with your hypothesis: (pdf warning)
If you think imaginary property and real property are the same, when does your house become public domain?
Similar in software, I have to pay $600 for Adobe CS4 as nobody can't produce similar tools because Adobe have their 'patent portfolio' there.
Very bad example: (1) Similar software exists; (2) The price is (most probably) not because of patent protection, but rather because of the availability, usability, and brand of the product.
will make up yet another new law to suit herself and her friends.
Well, you know what they say: even a stopped clock is correct twice a day.
All patents do is ensure the inventor, the person giving the benefits, is adequately compensated for his work, that's all.
No, they do not. They attempt to do so [...]
I don't think they even attempt to do so. The rationale of the patent is persuade an inventor to divulge what would otherwise be a trade secret. The limited monopoly on the invention is the incentive to explain how it works. The intent is that people can build on top of the idea and everyone will benefit.
Software patents are fundamentally broken for many reasons. But one of the biggest reasons in my mind is that nobody cares if these things are trade secrets. Society is getting absolutely nothing in exchange for granting a limited monopoly. It's not like everybody is going to stop writing software if they can't patent it.
Yes, he is, at least in the EU. Reverse-engineering is forbidden by software copyright law here
Small correction: reverse-engineering through decompilation is forbidden here (which the directive broadly defined as "translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof", see article 4.b). The disassembling and trawling through the code with a debugger that was mentioned before falls in that category.
I thought black-box reverse-engineering was not forbidden, but the "reproduction of the results thereof" above does seem to go in that direction...
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Copyright is both a positive right (it gives the author the right to distribute and sell his product under his own conditions) and a negative right (you can forbid others to do certain stuff with your copyrighted work).
No, copyrights are purely negative rights.
Not in (continental) Europe. Here, the "author's rights" are most of the time split up between "moral rights" and "exploitation rights". This exploitation right includes the right to publish it, see e.g. here and here.
Of course, those exploitation rights (including publication) are not absolute as you explained, but then again no right ever is.
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I see no mention of Leonardo holding any patents on that page. And Archimedes was not from Sybaris, so what was your point again?
"You can't allow somebody to commit the crime before you detain them." [Condoleezza Rice]
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I think most people/companies who have spent on lawyers for Markman hearings would dispute this assertion. In fact, the very concept of a Markman hearing is based on the idea that claims are legalese, not "technical writings", and that, in fact, engineers are not qualified to read claims and determine if their device infringes. Sadly, this lunacy has evolved to the point where this is quite true -- at the point where three different judges would give you three different answers about infringement, it is impossible to know whether you are safe or not. So a lot of patent licensing revenue is based on bluff and bluster. I can see where this helps employ more lawyers, but cannot for the life of me fathom how it increases innovation in other fields.
If you're dumb enough to hire Joe the Programmer to evaluate your patent infringement risk, instead of a patent attorney, then you deserve what you get.
I was reacting to this statement:
Well, you could read the claims of the patent. That would make it very easy to figure out whether your program is off the hook.
Because of the "your program", I interpreted this as "if a programmer wants to know whether or not his program infringes on a patent, he should just read the claims of the patent". So I was not talking about hiring a programmer to do it, but about a programmer reading the patent himself.
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There is no natural right to own ideas. At all. If I steal a chair from you, you no longer have a chair to use. If I copy something you created, you still have what you made as well, but now I have it too. There's a rather fundamental difference there.
It's not that I have a natural right to your idea: you are perfectly free to keep it for yourself. I do have a natural right to do with it whatever I want if you give it to me. Copyrights and patents act to prevent that.
"Pulling together is the aim of despotism and tyranny! Free men pull in all sorts of directions" -- Havelock Vetinari
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This is in direct contract to continental Europe, where they're historically been viewed as a moral right grounded in natural law.
I wasn't aware of that. Do you have any background on this? At least the history of patents in the UK does not suggest anything like that, nor does this overview.
What you say is generally true about European copyright (author's rights) though.
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Yeah, we should ignore all those hopelessly biased programmers, and listen to totally impartial you.
I'm curious. Which one of these would *not* apply to mousetraps?
Before you point to the "abstraction", remember that all claims cover concepts in the abstract, even if they are attempts to describe a physical object.
I wasn't talking about the claims, but about the innovation. In case of software, the innovation is purely in the abstract, unlike in case of mousetraps (where you do have to play with the "finicky physical bits" I mentioned). As far as incremental innovation is concerned, I guess that mouse traps at this point indeed also are mostly in that boat, and it's quite likely that patents are hardly useful anymore for the purpose of stimulating "mousetrap innovation", too.
I'm not aware of any economic studies looking at the effects of patents on the mousetrap industry though, presumably mostly because unlike software, mouse traps are not a pervasive enabling technology forming a fundamental underpinning of our daily lives and the entire economy.
Of course, there are many more arguments than those I mentioned above, such as
The degrees of freedom in a plug, Ladies and Gentlemen, are two. You've got the insulative surface, you've got the prongs. That's two degrees of freedom. The third degree of freedom is where you shove it.
With software, the number of freedoms are much larger than in an ethernet plug or a mouse trap, so the problem of patent thickets is much bigger (and the cost of analysing whether or not you infringe as well -- personally, I'd say it's virtually impossible to guarantee that any reasonably complex program does not infringe on any currently published patent).
You might want to have a look at the studies overview I linked to earlier. It contains various citations from economic studies explaining why patents are inappropriate specifically for the software field.
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Well, I'm not the one who mentioned "first sale" -- that was kanweg. But I immediately knew what he was talking about, and if you and theaetetus would look up from your law books and think about what it is and what it means, and just maybe what a few non-lawyer types might call it, and be slightly less pedantic and condescending, you just might learn how to communicate without pissing people off. But don't take my word for it that "first sale" is a relatively good euphemism for "exhaustion": according to wikipedia "Under the exhaustion doctrine, doctrine of exhaustion, or first sale doctrine, the first unrestricted sale of a patented item exhausts the patentee's control over that particular item."
I don't get it either.
If you write code for a living, don't you want your work to be protected?
You realize that when someone DLs your code off the internet for free, that reduces the value of your work.
You realise that if you cannot sell your work because it infringes on the patents of 5 patent holders that each want 10% of your revenue, that makes your work entirely worthless.
Try to see the big picture:
Ditto.
So why the anti-patent, anti-copyright hostility? Its not like you personally have to worry about infringement anyway. That's your legal departments job.
That is, if you have a legal department. At least in Europe, most of the software houses are SMEs, and they also employ the majority of people and provide the majority of tax income. Not to mention that each Euro spent on patent lawyers by the IT industry cannot be spent on developers.
To put it crudely: patent attorneys and patents are intrinsic overhead. Unless they are absolutely mandatory because otherwise the entire IT economy basically comes crashing down, you should get rid of them as much as possible. And no, that's not because patent attorneys are bad people.
PS: I'm only talking about patents. I'm not against copyright, except for the way it is being extended into perpetuity.
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>> turning the common case of simultaneous invention into a lottery, Actually, that is resolved in the USPTO in an administrative proceeding called an "interference." Not a lottery.
Yes, I know we're "first-to-invent" rather than "first-to-file". That doesn't make it any less a lottery -- several people "invent" the same thing around the same time, only one gets a patent. Or perhaps you're saying that invention is wholly deterministic, and inventing something always takes the same amount of time?
Actually, there is a very old and very strong research exemption under patent law.
Sure, the researchers themselves won't infringe. But they do have to care, because otherwise the people that hired them will end up infringing.
No, it's big companies and their lawyers (presumably like you) who (with patents, as with copyrights) try to make the government-granted monopoly stretch farther than it really does according to the patent or copyright, with carefully crafted contracts. They get slapped back on a regular basis for patent misuse, but that doesn't keep them from trying. See, for example Quanta v LG Electronics, where some smarty-pants LG lawyer thought they could have their cake and eat it too, by having Intel manufacture stuff that motherboard manufacturers couldn't use unless the motherboard manufacturers also paid a fealty to LG. The US Supreme court ruled that, even though LG's contract with Intel was written to exclude its customers, heck, even though Intel had to tell it's customers they needed a patent license, the contract was meaningless in that respect, because So, I feel pretty safe in saying that, if I buy a properly licensed resistor, I can do whatever I want with it, and can't be sued on the basis of the patent claim(s) which were the subject of the license. (Obviously, I can infringe some other patent claims, depending on the circuit I make.) Of course, there will always be other cases where companies and their lawyers get clever and figure out how, for awhile at least, to double-dip and extract value for their patent from multiple places on the food chain, but for the most part, the public and the Supreme Court frown upon this.
I thought you were a patent attorney!!?! In Madey v. Duke University, the Supremes pretty much eviscerated the idea that just working in a lab was protection.
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I work in the pharmaceutical industry. The Majority of the new drugs nowadays come from two sources. 1: IN-house micro-improvement. This is where you take (for example) Prilosec Make the S-enantiomer of it. This is enough change for a new patent. Call new product Nexium. 2: From Small bio-tech start ups that are mostly funded by government grants. If your product gets through Phase II you start to get casual calls from large Drug Makers (like Roche). If You make it through Phase 3 large companies (like Roche) then offer to buy your product. Its a perfect system for the large Drug makers. Micro-improvements are cheap to do in-house and you can let others do the hard work of researching a new drug while you simply scoop up the survivors. So Yes it is possible for the Acedemic/ govt funded research to hold up the entire pharmaceutical industry because it is doing that right now.
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Dunno what you think most of us do in labs, but I gotta tell you that my employer certainly hopes it is in furtherance of their business.
the Supreme Court can take on the even more widespread problem of people misusing the word "hopefully".
Really? I don't think most researchers work in the legal department.
/me rolleyes
So maybe the extent of their having to care is just that they keep the legal department informed of what looks promising, and money that could have gone to their budget goes to legal instead so they can do whatever research of their own.
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And, yes, it's bad for me, but it's also bad for a lot of other people, and I think you should point out to others that your previous unqualified statement (in bold) that "If you're a scientist doing research in a laboratory, you're not infringing a patent." is really not necessarily true. I mean, you being a lawyer and all, they might think it was legal advice or something...
It's particularly telling that, in that same post, you went out of your way to castigate other comments: "Like most of the anti-IP comments on here, your post is far less insightful than the +5 would indicate."
This is absurd. Software is not like sandwiches. Sandwiches require effort to copy, software does not. So, you are saying its ok for me to invest 100's of hours of effort into a software product and you simply be able to copy all of it at a whim? Great idea! Now, all of apps will have to be web-based SAAS for anyone to get rewarded for their effort implementing their ideas.
This exploitation right includes the right to publish it, see e.g. here and here.
That wasn't my impression reading the pages you linked to, nor would it really seem to make any sense.
Both pages refer to an exclusive right to publish, much like US copyright law refers to an exclusive right to distribute copies. But this doesn't mean what I think you think it means. An exclusive right isn't a right that only one person holds; rather it is a right to exclude (i.e. prohibit) other people from engaging in the particular activity. That means it also isn't a right to engage in it yourself.
If the right to publish a creative work in Europe stemmed from being the copyright holder, this would mean that public domain works -- whether the author was, say, Shakespeare, or even yourself if you had disclaimed the copyright, or the work was copyrightable but for some defect that made it ineligible -- could not lawfully be published at all. That's a nonsensical result.
Of course, I'm no expert in non-US copyright law, and the pages were not the actual laws, but lay explanations for them in a language not native to the countries at hand, so perhaps I have misunderstood what the law actually says. But Berne is available in English, and that's probably what those countries are relying heavily on (more fools them, IMO), and the Berne right to make copies is a negative right. Also, IIRC, Berne doesn't have a general distribution or publication right. Again, though, I may have missed it, as being in the US I have very little need to ever care about what's in Berne; we don't use it here.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
You realize that when someone DLs your code off the internet for free, that reduces the value of your work.
Try to see the big picture:
Software can be copied for free -> Your work product has less value -> YOU have less value -> your salary goes down.
So why the anti-patent, anti-copyright hostility? Its not like you personally have to worry about infringement anyway. That's your legal departments job.
That would be intellectual property protectionism, and it is well established that protectionism doesn't work. It is the same thing as saying we need to outlaw oranges from Florida because they are cheaper and it is hurting the local industry, when in fact the solution is to lower prices or produce a different good, which raises the standard of living for everyone.
You fail to recognize the secondary effects of patents, even though you just listed at least one: the necessity of a legal department. The monopoly of a particular discovery is not a feature, it is a bug: it restricts the utility of produced goods, and raises their cost. It encourages people to embark on expensive projects that might not otherwise be profitable, and overall hurts society (compared to the alternative).
We have property rights partially because there is a limited supply of goods, there is, however, no limit on how many people may know about or apply a discovery, and it makes no sense to try. My application of someone else's discovery, wither I know or not, in no way violates their human rights. You cannot say it reduces the "value" of their work because value is entirely subjective, and has no absolute value associated with it. Indeed, I would say it increases the value, and you can't argue that, because that is my subjective valuation of it.
Wonder what the public key field is for?
From TFA:
Imagine the outcry if the courts were to legalize patents on English prose. Suddenly, you could get a "literary patent" on novels employing a particular kind of plot twist, on news stories using a particular interview technique, or on legal briefs using a particular style of argumentation. Publishing books, papers, or articles would expose authors to potential liability for patent infringement. To protect themselves, writers would be forced to send their work to a patent lawyer before publication and to re-write passages found to be infringing a literary patent.
Sounds like a plot element from a Jasper Fforde novel.
-- The Wanderer
You're right, I was mistaken. Copyright is indeed also an exclusion right.
Thanks for setting the record straight.
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"Now, all of apps will have to be web-based SAAS for anyone to get rewarded for their effort implementing their ideas."
If there's really no other way, so what? Now, all street water dealers are forced to get jobs elsewhere because street water selling doesn't make money -damn water pipes! But, wait, you can see people selling bottled water in the street in Sevilla in mid august! so if you can make money, you go for it; if it doesn't, look elsewhere but don't ask for a state-granted monopoly. Isn't it USA the land of the free... market?
You can look at places without the death penalty and see that that claim is absurd.
You can also look at history and at other places to see what happens to innovation when there are no patents, or when patents expire. Which seems to show that innovation goes up slightly in such cases.
Before I go read your 325 page PDF on my lunch break, would you mind giving some quote or an indication of what page to look at first?
Before I go read your 325 page PDF on my lunch break, would you mind giving some quote or an indication of what page to look at first?
The very beginning (well, after the 2 pages of acknowledgments) is a good place, it talks about steam engines there for a couple pages. Then there's also chapter 3 starting on page 49.