SFLC Tells SCOTUS, "Software Patents Are Unjust"

H4x0r Jim Duggan writes to inform us that the day after Red Hat advised SCOTUS that software should not be patentable, the Software Freedom Law Center filed its amicus brief in the Bilski case. "In this closely-watched case, the Supreme Court will decide whether the Court of Appeals for the Federal Circuit was correct in restricting patentable processes to those 'tied to a particular machine or apparatus,' or which 'transform[s] a particular article into a different state or thing,' a conclusion which if fully implemented could bring to an end the widespread patenting of computer programs. ... This case gives the Supreme Court a chance to reaffirm what its past cases have held for more than a century: that no patent law consistent with the US Constitution can permit the monopolization of abstract ideas." Groklaw is running the usual cogent gloss with the full text of the SFLC's brief.

Comments

sure

[Anonymous Coward]

yeah good luck with this

H4x0r Jim Duggan?

[Anonymous Coward]

Haha, great name. Yoooooo!

FSF submitted its own brief

[H4x0r Jim Duggan]

• FSF's Amicus Curiae Brief
• FSF's press release
• List of Bilski v. Kappos amicus briefs

    The brief can be split roughly in three. There's the "Interest Of
    Amicus Curiae" section, which is a long description of FSF, to inform the Supreme Court why they should be interested in reading the brief. Then there's the Argument, which has the remaining two parts. The first is about the previous rulings which indicate that software has already been explicitly excluded by the Supreme Court. The last part, which starts at "II. For Many Software Developers, The Patent System Is Unjust.", deals with how software patents have proved to hinder, rather than promote, the progress of the useful arts - which means they have no valid constitutional basis.

Re:FSF submitted its own brief

[Anonymous Coward]

I read the brief, and the best part: the car analogy.

Re:FSF submitted its own brief

[Timothy Brownawell]

The last part, which starts at "II. For Many Software Developers, The Patent System Is Unjust.", deals with how software patents have proved to hinder, rather than promote, the progress of the useful arts - which means they have no valid constitutional basis.

Will this section be worth anything if neither party is actually asking for software patents as a whole to be thrown out? (And why would they ask for that? My understanding is that the patent they're arguing about is about business methods rather than software, and that business method patents as a category are quite a bit hokier than even software patents.)

I've said it before and said it again

[JimboFBX]

A patent should be defined as a solution to a problem. Define a problem, give it to someone with no prior knowledge of the solution, ask for a solution, then compare the answers (if there are any) to the one the patent came up with. You should be able to present the problem it to peers in a field and determine if it is obvious or not based on their answers (or lack of).

Re:I've said it before and said it again

[Anonymous Coward]

Bullshit. Problem: It takes too many clicks to make a purchase.

Re:I've said it before and said it again

[lastgoodnickname]

depends on the two numbers

Re:I've said it before and said it again

[JimboFBX]

Solution: store all the payment and shipping information before hand (90% of responses)

Patent solution: store all the payment and shipping information before hand

Patent is obvious

REJECTED

Re:I've said it before and said it again

[QuantumG]

Way to frame the problem to get the answer you wanted. How about this:

Problem: people don't buy enough shit on the Internet.
Solution: make it easier for returning users to buy shit.

Reason it's non-obvious: NO-ONE DID IT BEFORE.

Re:I've said it before and said it again

[nschubach]

I need a method of organizing my open programs...

You could get many answers for that. Are you saying the taskbar isn't obvious? How many people do you ask? What education will they all have? (An interface designer will come up with a different solution than an programmer...)

I still say, no patents, only copyright. Software is like an instruction manual. You can describe many ways to get the same objective and they all look like books. Also, look and feel should be trademarks, not patents.

Re:I've said it before and said it again

[donaldm]

A patent should be defined as a solution to a problem. Define a problem, give it to someone with no prior knowledge of the solution, ask for a solution, then compare the answers (if there are any) to the one the patent came up with. You should be able to present the problem it to peers in a field and determine if it is obvious or not based on their answers (or lack of).

I can see were you are coming at but what you have said actually reinforces software or any abstract idea as patentable. What is really needed is to define what can and cannot be patentable and that is not going to be easy since patents are defined according to how the law perceives patents and to make things even more difficult it is very easy to misinterpret what is ment in one language to what the translation means in another. It becomes even more difficult when your own language (in my case English) can also be interpreted in different ways in the eyes of the Law.

To ask a peer to look at whether a patent is obvious or not is commendable but not really practical since it would be just about impossible to get a peer review since money is usually involved and the cost of getting a patent revoked once issued no matter how stupid or trivial can be very expensive.

I think the best way of getting rid of stupid patents is not to allow abstract ideas or mathematical concepts but to insist on physical results. However when I look at some physical electrical patents (I am an Electrical Engineer) I am appalled, since some of these are actually based on a minor change to an existing system and IMHO this should never be patentable. At least getting rid of software patents could go a long way to fixing what is really a complex issue.

Re:I've said it before and said it again

[AuMatar]

Being the first time someone has done something doesn't make it non-obvious.

Problem: Nobody has ever jumped off the roof of my apartment and survived.
Solution: use a parachute.

Is this patentable? No, because people have jumped off high places before, and that's what their answer was. A patent's purpose is to promote the useful arts and sciences. This is their purpose under the constitution. The problem that must be non-obviously solved is therefor the technical one, not the business desire. His statement of the problem was correct- how do you perform purchases without a postpay or confirmation step. The solution was to save that information server side, which is what 90% of programmers would have told you in under 30 seconds of thought. It is therefor an obvious solution.

Re:I've said it before and said it again

[wvmarle]

Ask any inventor and they will tell you that finding the problem is the main part of the invention. When you have found the problem, finding the solution is the easy part. That doesn't make a solution less patentable though. The old solution may have worked fine in most situations, and you found where it doesn't work and found a solution for that. Or you found a better way to do the normal stuff.

For example, the problem of attaching two pieces of wood. The easiest way is to use some twine or rope to tie it together. Then later someone thought that it should be done better: tighter fit, less movement. And he invented the pin connection. Make holes in both pieces of wood and stick a pin through it. Later someone invented the nail to make it easier to make the connection. And that was followed by the screw that was harder to apply but makes the connection stronger, because he found the problem of the connection to be too weak.

Or the light bulb: the problem is getting light at night, the obvious solution was open fire. Then someone thought "can't we use that newfangled thing called electricity for that?" There is a problem: make light with electricity. Well the solution is obvious: glowing a wire. That must have been seen many times (short-circuits). But now the problem is how to keep it from burning and breaking? That is the real problem of course. And after that it was just working to a solution.

So really it is both: the problem AND the solution. That makes a patent. The problem of software patents is that a PROBLEM is patented, generally without a real SOLUTION to it. A single problem may have several patents, each giving a different solution. And obviousness... that's always a really tough one to prove or disprove.

Re:I've said it before and said it again

[xmundt]

Greetings and Salutations...
          However, as any BASE jumper will tell you, there is a LOT of prior art to show for leaping off structures with a parachute...and examples of prior art are exactly what keep this idea from being new and unique.
              I do agree with the general trend of this discussion though, that software should not be patentable. Copyright, yea...Patent, no.
              Regards
              Dave Mundt

Re:I've said it before and said it again

[smoker2]

So no one in the history of mankind ever had a store account ? Identify yourself and the payment is taken care of discretely and automatically ? Just because it's "on the internet" does not make it patentable. And people were doing it before, and people are still doing it now. One Click is just a marketing phrase describing a widely held practice, one that was widely held before the patent was granted. Why do you think there was such a fuss when the patent was granted ?

And using the fact that no-one did it before as a non-obviousness filter is stupid. Most sensible companies didn't do it because of the extra security concerns involved, not because they didn't think of it. As an e-commerce developer at the time, I didn't do it because I didn't like the idea of my details being held by an invisible third party. I therefore didn't place others in that situation.

Re:I've said it before and said it again

[Teancum]

A patent was originally defined as legal protection granted to an individual for creating a device that does something unique and useful. A temporary monopoly was granted by the government to allow that inventor who created that unique and original device to recoup the R&D costs associated with creating that device in the first place, noting that R&D for something genuinely original often has dead end roads when trying to get something to work and is generally quite expensive to perform. Once somebody has established a good template for how something can work, many others are willing to copy that device since the hard work has already been accomplished.

The slippery slope from this definition and the one given above (that a patent is about solutions instead of physical devices) is precisely what has led us to software and business method patents. R&D costs, while not completely missing, are orders of magnitude lower and really not a significant problem. Furthermore, previous tests measuring the validity of patents have included an explicit exclusion for mathematical theorems and formulas.

To put it another way, all computer software can be reduced down to a single number. Perhaps a rather large number with thousands, millions, or even billions of digits, but a number none the less. What a patent essentially does is to give people exclusive copying authority over certain classes of numbers and makes it illegal to publish that number without their permission.

Other arguments can be offered here, but the point is that patents don't cover a mere solution or abstract idea. The original intent of the framers of the U.S. Constitution and based upon the previous English Common Law precedent over previous patents... including abuses of patent law in England that the founders of the American Republic were trying to avoid... was intended to be narrowly defined to cover strictly physical devices precisely so patent law wouldn't become perverted to censor speech and political philosophies. A broadly construed patent philosophy can be a tool to pervert other aspects of the constitution including the 1st amendment and other areas of the constitution as well.

Horrible software patents include such things as the LZW algorithm patent that somehow landed in the hands of Unisys... where they asserted the patent to extract royalties for those companies wishing to use the GIF image standard in their products... including web browsers. The argument that payment of royalties to Unisys for the use of this algorithm is somehow going to encourage Unisys to invest into its R&D program seems absurd. Besides, in spite of the millions in royalties that were paid to Unisys for those who did pay the extortion tax here, very little can be said to have come from it other than the employment of a few lawyers who were involved in setting up the royalty schedule and sending out the cease and desist letters. In other words, even in this clear-cut example of a software patent that was granted, the use of the patent was to stifle innovation and progress rather than to encourage further development of software ideas.

Actually, the enforcement of the LZW patent did encourage the development of other methods of graphical image display formats: It created the PNG format that was explicitly established as a way to legally work around the LZW patent so it would never have to be used in the first place. Those involved explicitly were involved in establishing a graphical image standard that would not be encumbered by patents or require royalty payments for its use and application. It also was a general improvement upon the original GIF standard as well, allowing for greater color depths and even improved data compression compared to the GIF images that were originally being protected. That was useful, but it wasn't the patent itself that was proving to be useful in this case... it was merely a roadblock that needed to be overcome and ignored. It has become ignored for the most part as well.

Re:I've said it before and said it again

[Teancum]

One of the problems facing both software and electrical engineers is the fact that ultimately all software and nearly all logic circuits can be expressed as either software or hardware. You can take nearly any logic circuit and express that as a computer algorithm, and you can take any program (yes, even something so bloated like Microsoft Windows) and express that as a whole bunch of discrete logic gates and even give pre-1980's part numbers for the whole thing. No, I'm not suggesting anybody would want to implement Windows via 7400 series gates, but it is in theory possible even if wildly unlikely.

I agree with you on the physical device patents that need to be the basis of patents, and I would love to see patent law restricted to strictly physical and tangible things. Stuff you can touch and put on your desk... or at least see in a warehouse. That would at least exclude business method patents, but as I'm pointing out that software patents are another beast that does have its own rather interesting set of issues that could be subverted via the physical device test.

Of course, I'd love to see a standard and test applied to software patents that it would have to have an actual implementation be made in physical gates in order to be granted a patent. That would at least set a bar high enough to keep most of the patent trolls away even if it would still allow some software patents to be granted. It might even keep a few electrical engineers employed as well.

Re:I've said it before and said it again

[Anonymous Coward]

Say it all you want, but the question here isn't obviousness. It would be great if it were, and would be the ideal solution. Instead, the crutch is that certain methods (i.e., those not tied to a machine or that perform a transformation) are simply unpatentable, regardless of whether they're obvious or not.

It should be clear from any reading of the statutes that this is a broken rule. The Federal Circuit and the BPAI are relying on 101 to deny patents that should be denied UNDER 103. This is a critical issue, because it breaks patentability for a number of truly new, useful, and nonobvious inventions.

Re:I've said it before and said it again

[Bigjeff5]

A temporary monopoly was granted by the government to allow that inventor who created that unique and original device to recoup the R&D costs associated with creating that device in the first place, noting that R&D for something genuinely original often has dead end roads when trying to get something to work and is generally quite expensive to perform.

It's actually much simpler than that, though what you said certainly applies. The temporary monopoly is a reward for being clever. We want clever people making clever things, and we also want them to share how to make that clever thing with everybody else, so how do we encourage that? We tell them that for X number of years they are the only ones allowed to make the item they invented. They can produce and sell the item themselves, license their right to produce and sell to someone else, or both.

Personally, I think software patents are a good thing, they simply haven't been done correctly. You don't grant patents on some gadget based on some vague description based on what it would do, you grant patents based on the actual design that can be used to re-create the gadget. That's where software patents go wrong, I think, they don't actually give you the design (the source code) for the product, they just give a description of what it does. The actual important piece to share is the source code for the patentable software, not just the description of all the cool things it does. It is also the source code that matters when a software patent is infringed upon, because you can compare the source to see if the infringer is doing whatever it is he's doing in essentially the same way as the patent holder.

That would both encourage new, innovative software AND spread these ideas around quickly, which is the whole point of the patent system. As it stands now we are stuck in the "trade secrets" mode for expensive software and we shouldn't be.

but it wasn't the patent itself that was proving to be useful in this case... it was merely a roadblock that needed to be overcome and ignored. It has become ignored for the most part as well.

Despite what you may think, the LZW patent was an example of poor business management, not the patent system failing. The patent portion of that issue worked flawlessly, and was exactly the kind of innovation the patent system was designed to encourage. LZW was vast improvement over LZ78, and certainly qualifies (it is not pure math, though people argue the point) and the Sperry Corp. (who Welch worked for) had a right to the patent. They merged with the Burroughs Corp. and formed Unisys. That's how Unisys got it, Unisys was the company that developed it.

What you pointed out were the consequences of being an asshole with your licensing terms - a competing format was developed and hardly anybody uses GIF today (which uses LZW, as you pointed out). You can be fairly certain that the developers of PNG looked long and hard at LZW before they were able to come up with something better. You look at similar technologies, like mpeg3 and mpeg4, both of which have patents on them, both of which have the exact same potential problems as LZW, and yet together they include the two most popular and ubiquitous digital audio formats out there - mp3 and AAC. They are simply compression algorithms, just like LZW, they are also licensed just like LZW, yet the patent owners handled it much better than the LZW owners did.

It's very possible that without patents like LZW having been established as legal, mpeg3 and 4 would have been kept private, trade secrets with stiff licensing terms and a single software vendor, and then where would we be?

Re:I've said it before and said it again

[Tweenk]

One of the problems facing both software and electrical engineers is the fact that ultimately all software and nearly all logic circuits can be expressed as either software or hardware.

For me the case is clear. You could only patent process technology and physical layout techniques, while the logic would be unpatentable. I think it's fair game. Moreover you can still keep designs confidential, like companies do with software source code.

Re:I've said it before and said it again

[Anonymous Coward]

We want clever people making clever things, and we also want them to share how to make that clever thing with everybody else, so how do we encourage that?

For software, that's really easy: let reality run its course so that the inventor is first to market.

In 1800 that didn't work very well, because of the nature of the inventions. Without inventions, the inventor had to keep a secret, snail mail investors who took a 4 week journey to come see it in the lab, get the money together using the archaic financial systems, get the gold onto the stagecoach with enough guards, then the newly-formed company has to hire a workforce and fabricate the new parts in secrecy, and get them onto the stagecoaches out to market. Then customers see it and word about the awesomeness of the product slowly spread by word of mouth and snail mail.

Now the inventor goes from the invention to a product that uses it, immediately, and customers can pay for it and download it immediately while a firestorm sweeps through Twitter. By the time someone can make a competing product that uses the same idea, the inventor already has his money back.

Ok, you've convinced me: they should have a 4 day monopoly. I would have said 3 days but that's not fair to people who invent things right before a holiday-adjacent weekend.

You can be fairly certain that the developers of PNG looked long and hard at LZW before they were able to come up with something better.

No, they didn't. They just took a different compressor off the shelf. The only things in the compressor that they "looked long and hard at" was whether they would be allowed to use that algorithm, and how well it performed compared to others. In 1995, compression algorithms superior to LZW were a dime-a-dozen thanks to the compression fad that swept through hacker society 5-7 years earlier, and JL-G's zlib was ready and waiting for them.

Re:I've said it before and said it again

[ctmurray]

Thanks for this explanation and I wish I had mod points. Patents can spur creative people to invent around them, often coming up with better solutions.

What you pointed out were the consequences of being an asshole with your licensing terms - a competing format was developed and hardly anybody uses GIF today (which uses LZW, as you pointed out). You can be fairly certain that the developers of PNG looked long and hard at LZW before they were able to come up with something better. You look at similar technologies, like mpeg3 and mpeg4, both of which have patents on them, both of which have the exact same potential problems as LZW, and yet together they include the two most popular and ubiquitous digital audio formats out there - mp3 and AAC. They are simply compression algorithms, just like LZW, they are also licensed just like LZW, yet the patent owners handled it much better than the LZW owners did.

Re:I've said it before and said it again

[Teancum]

BTW, if MP3s and MPEG-4 are so wonderful, why is Ogg Theora and Vorbis being created and gaining "market share" of the video and audio markets... respectively?

Particularly for open source development, but also for purely commercial applications, I have strongly discouraged any clients from ever using MPEG-4 for any application unless there are specific contract requirements that demand the use of that data standard. The licensing terms from those few patent holders who are allowing a license for that standard are not really worth the effort and there are indeed better alternatives that don't require those kind of patent royalty payments. The "MPEG Licensing Authority" who mostly handles the royalty arrangements for most of the MPEG formats won't, however, promise that all of the patents have been dealt with through them. Indeed, they even publish a list of those patents which are not covered under their agreements. Yeah, that is real comforting and something to build a business plan upon.

As for AAC.... I have dealt directly with Dolby Laboratories. You should be very concerned when the attorney to engineer ratio has more folks with a legal degree than an engineering degree. Indeed, Dolby has a ratio of about 3 lawyers for every developer (it may be higher, but that was about ten years ago). On the whole their engineers are not assholes, and I've been able to at least deal with them on a professional level. The licensing terms aren't really all that awful, but you need to be incredibly careful about payment of royalties and have an IP lawyer review everything you do with them like a hawk.

Don't even get me started on dealing with Unisys. Those guys are absolute creeps and can be trusted as far as you can throw them.... with a thousand nuclear warheads on a updated version of the 1960's Orion spacecraft. I will never, ever, in my lifetime, ever sign an agreement with that company or even engage in any sort of negotiations ever again with that company. They had their chance and they blew it for me. If it is to negotiate with them or be terminated, I'll look for a new job. Seriously. It was that bad of an experience for me.

I've dealt with many of the "players" in the multimedia format "industry" and the digital media formats you are describing here have many of the same problems that the LZW algorithm had. Some will actually negotiate with you, but they all have a way to rip the rug out from under you if you become successful and they don't think you are giving them a large enough cut of the pie.

I still fail to see what actual benefits come from patent protection anyway, and I certainly doubt that any of the companies involved with the data format standards you have mentioned would have come up with something new and innovative from the royalties received. That it supports and maintains a level of employment for the legal industry is true, but I see that as a bunch of leeches who are not employed in advancing and improving society so far as their individual contributions are concerned with regards to the legal paperwork and royalty terms involved here. I'm sure IP attorneys would beg to differ, as they have in the past when I've mentioned this here on /.

Re:I've said it before and said it again

[geekboy642]

People had to take time and effort to reinvent the wheel (image format), because the inventor was extorting people who used the original wheel. If Unisys had either been unable to legally lock down that format, or if they had been intelligent with their licensing demands, a majority of that time and effort would have been spent inventing more interesting software. This is a classic example of the broken window fallacy.

And you can't consistently argue on the one hand that LZW's being locked down encouraged development of an open format, then blithely assume that if MP3 were locked down (further than it is already) it could not encourage development of an open audio format!

Good luck with that

[crypTeX]

This is one where I believe that no amount of logic and reasonable precedent will matter. The court will simply not invalidate the basis of an existing industry and it has nothing to do with corruption. No quantity of shine can alter the fundamental nature of this complaint. It won't happen, don't get excited.

Re:Good luck with that

[wizardforce]

The sad thing is that you are completely right. The powers that be are stuck in Keynes era economic thinking that speculates the proper allocation of resources results in an overall loss of jobs... It doesn't any more than the loss of the buggie whip industry did but there it is.

Re:Good luck with that

[Anonymous Coward]

Except that there is no "industry" at stake here other than patent troll companies that buy vague ideas that were wrongfully patented by a faulty system then go about suing valid industries that are trying to do their job at innovating. To clarify that, the only ones that are going to lose out here are those are actively gaming the system.

Actual companies in the field will NOT be negatively affected by having all their software patents invalidated simply because nobody else will have software patents to sue them either. And thus all the companies that are actually IN the tech industry can actually move forward - and with reduced costs since they won't be paying for massive amounts of useless god awful patents.

Re:Good luck with that

[Runaway1956]

Which industry are you speaking of? Patent trolling? Seriously - those people and corporations with a marketable product will continue to sell their product, until someone comes out with a better product. No industry is going to fail, aside from the patent troll industry. A few lawyers may have to search for a slightly more ethical specialty, like ambulance chasing.

Re:Good luck with that

[wizardforce]

The industry won't fail. This is true, however things will change. Any corporation dependant on the current patent system to destroy its competition will fight tooth and nail to keep it and frankly, considering what happened with anti-trust charges against MS I wouldn't count on software patents being invalidated by SCOTUS.

Re:Good luck with that

[shentino]

Then that would imply that SCOTUS is a pack of wusses afraid to bankrupt the mafia.

Re:Good luck with that

[eddeye]

The court will simply not invalidate the basis of an existing industry and it has nothing to do with corruption.

Bingo. The Court won't make a decision that far-reaching. Roberts pushes for narrow decisions. They'll leave broad policy matters such as software patents per se to Congress. Even if they did miraculously invalidate software patents entirely based on the current statutes, what would happen? Congress would pass a bill yesterday explicitly authorizing them.

I suspect the Court will broaden the holding of Bilski. Bilski was based on 30 year old rules from a different technological era. The Court didn't accept this case just to affirm the lower decision. Nor will they formulate a stricter rule for the reasons stated above.

Nothing the Court decides is likely to affect software much. Bilski is aimed at egregious business method patents, nothing more. Software patents are just as accepted as before - the PTO simply requires reciting a machine somewhere in the claims. Something like "doing X" becomes "doing X on a processor". That's it.

If you want fundamental changes to the system, you'll have to petition Congress to amend the patent act. Trying to force it through the courts is a waste of time and resources.

Yes I am a patent attorney.

Re:Good luck with that

[Anonymous Coward]

Would you say that licensing consortia count as "patent trolls"? And those consortia exist to pay, for the most part, the large corporations that oc is referring to (eg, apple et al and mpeg-la). The goal of this strategy is getting on the patent licensing gravy train, with guaranteed long-term income for the corporation in the form of what amounts to a tax.

Sticking with the mpeg-la example, they get a cut of pretty much every consumer electronics sale these days. And soon, if Mozilla yields, they will have, in effect, dictated that every "useful" (read: hd-lolcat-video-capable) device and os pays the tax.

No, it's bigger than patent trolls.

Re:Good luck with that

[Anonymous Coward]

//Any corporation dependant on the current patent system to destroy its competition//

A complete list of such corporations is attached below.

Re:Good luck with that

[benjamindees]

But they are probably right. It would result in a loss of jobs, almost without question. The problem is not the loss of jobs or the work performed by those who hold them. Greenspan's poor acting aside, no one actually believes any of the tripe recited by politicians about the American worker being "productive" or the US economy being "strong" or that the vast majority of workers couldn't be replaced with simple machines or tiny perl scripts at the drop of a hat. The problem is not loss of jobs. The problem is the loss of societal function that those jobs serve.

The problem is that the "powers that be" think that work is a virtue in and of itself and that subsidizing bullshit make-work "jobs" creates a beneficial societal structure and an effective method of inter-generational wealth transfer.

It is widely believed that jobs prevent criminals from committing crimes, prevent wives from cheating on their husbands, promote health and well-being, provide beneficial social activities, and instill good moral values, even aside from sometimes producing goods of economic value. Some of this may be true. Most of it is bullshit.

I would venture to guess that a large percentage of the US economy is inextricably linked to the broken-window fallacy writ large in the form of the full employment mandate of the federal reserve. Decades of economic pressure has selected for Americans who are completely dependent upon jobs, welfare, student loans or other hand-outs provided by a government and banking system predicated upon force and fraud.

The average American is expected to have children, work full-time for a corporation earning close to the median regional salary, have several credit cards and spend every dime she earns. And if you don't fall into this category, your well-being will be utterly crushed by the economic power of the federal government to seize your property, tax you into oblivion, subsidize your worthless neighbors, draft you into bullshit wars or mandatory "volunteerism", devalue your savings, destroy your health, and distort and regulate markets as large as 60% of the mortgages in the US and as small as a single bushel of corn grown and consumed by a single farmer.

Re:Good luck with that

[unoengborg]

The problem is that patents are potentially harmful to all software industry. Companis get patenst to be in a position to trade if attacked. But that only work if the one attacking you have any need for your patents, if you are attacked by patent trolls, there is no remedy but paying their extortion money. The bigger and richer your company is the more likely it is you get attacked. All software industry would be much better off without patents,

Re:Good luck with that

[DarkOx]

no one actually believes any of the tripe recited by politicians about the American worker being "productive" or the US economy being "strong" or that the vast majority of workers couldn't be replaced with simple machines or tiny perl scripts at the drop of a hat.

I am not so sure of that. Some people believe or at least choose to accept the lie. Otherwise how do you explain all those sovereign wealth funds the world over continuing to buy T-bills, even when rates and discounts are relatively low to what you and I might view as the risk?

Sure lots of it has to do with necessity; we are into them so deep they don't see any way to let us get out without getting in deeper. Ultimately though they system is predicated on fraud and force as you say. Trouble with fraud is even the best scheme always comes apart in the end, sooner or later a call that can't be covered will get made, or something to damning to be ignored will leak. Last I checked we have only had moderate success with that force thing as of late, at least where foreign powers are concerned. I don't think anyone will move against us directly but as soon as a few decided they can afford the losses; our voice in world policy and interests will be virtually ignored, because we can't do anything about it.

The economy is grand joke and the recovery only exists if you don't know what the word.

Re:Good luck with that

[the_macman]

Let me know how that worked out for racial integration in schools....oh wait.

Re:Good luck with that

[smchris]

"No industry is going to fail, aside from the patent troll industry."

You say that like it's a small thing. What _do_ we manufacture in the U.S. these days? Patent trolls have been a growth industry. Cry for the underemployed lawyer, can't you?

Re:Good luck with that

[DiamondMX]

I do believe you just claimed that student loans (almost free education) was a bad thing...
Well, only in that making education 'almost' free is only 'almost' good enough.
But you can go to your happy place in the dark ages.

Anyone who believes that the average person should be *less* educated should be sent to a third-world country to reconsider how nice education is.

I do believe your post claims that both low-income jobs AND welfare should be thrown out, I appreciate your natural selection instinct, and think you'd be first against the wall when the revolution came. And it would come hard.

You've got to be a troll, right? Surely someone can't actually believe this crap and be capable of mostly correct spelling and grammar?
Hell, someone who believed that probably couldn't operate a light switch, much less a PC.

Re:Good luck with that

[benjamindees]

Perhaps you should have used some of your free education to take an economics course, so that you might understand the effects of minimum wage, subsidies and other price controls.

Or, hell, take an English class for god's sake, so that you know what a run-on sentence is.

Anyone who believes in robbing from those capable of benefiting from higher education in order to fill schools and businesses with a bunch of worthless drooling morons in the name of progress deserves to be dispatched to the great socialist utopia in the sky. "I do believe" you're a wanker idiot whose socialist tripe is the reason we kicked your pasty, boot-kissing, state-subsidized asses back across the pond two hundred years ago.

Re:Good luck with that

[alexo]

This is one where I believe that no amount of logic and reasonable precedent will matter. The court will simply not invalidate the basis of an existing industry and it has nothing to do with corruption. No quantity of shine can alter the fundamental nature of this complaint. It won't happen, don't get excited.

I'll take it one step forward and assert that any change that intends to shift the current balance of power between the "haves" and the "have nots" toward the letter will either never happen or will happen in such a way that it will achieve the opposite result.

The security theater is not the only one we have.
There's also the democracy theater, the justice theater, etc. You name it...

Re:Good luck with that

[Anonymous Coward]

On issues of individual rights like racial integration, absolutely. The courts are the guardians of our liberty. Scalia's constant refrain of "take it up with Congress" is as ridiculous as it is unworkable. Congress can't deny Constitutional rights.

However, nothing about patents in general or software patents in particular is an issue of rights. Patent law is a hugely complex field catering to many competing interests. A legislative compromise that accounts for all parties at the table is absolutely required. It's not a perfect solution, but it's the best we've got. Nine justices in a room can't possibly deal with all the intricacies involved. That's not their job and it's not how they function.

Re:Good luck with that

[Anachragnome]

"...and with reduced costs since they won't be paying for massive amounts of useless god awful patents."

Or the lawyers that go with them...

indeed

[wizardforce]

I would go further to speculate that the patent system as it is harms technological advancement more than it encourages it in most industries. The patent system was established with the intent to create temporary monopolies for inventors in order to encourage the development and dissemination of that R&D throughout society. The problem is that too often, it's used to destroy competitors. The court costs and inequality of enforcement associated with the system defeat most of its purpose as specified in the US constitution. Software patents are only the tip of a very large iceberg.

Re:indeed

[plover]

The patent system was established with the intent to create temporary monopolies for inventors in order to encourage the development and dissemination of that R&D throughout society. The problem is that too often, it's used to destroy competitors.

OK, let's look at one of the industries most reviled for price gouging in America: pharmaceuticals. They claim to spend anywhere from $100 million to a billion dollars or more to come up with a successful new drug. They patent it. Then, with the required years of development and testing, they get to put it on the market for maybe 12 years or so, without competition, and they charge anywhere from $100/month to $1000/month or more. After 12 years, GenericCo starts selling them for $4/month, so they then have to drop their prices to compete.

For the moment, let's ignore all the criminal and other misdeeds of big pharma (phony studies "proving" generics are bad, misleading marketing to doctors and politicians including golf trips to St. Andrews, selling pointless medicines for not-serious conditions such as "restless leg", "weak boners", etc.,) and focus on just the patent portion of this.

If it took them $500 million dollars to create the drug, and they have only 12 years to sell it, they have to make more than $500 million dollars to make the investment worthwhile. Don't forget, for each useful drug they invent, they also invest millions on drugs that don't work, or drugs that are eventually shown to have toxic side effects and must be pulled from the market. And just about every death that occurs while a patient is taking their drug ends up with a lawsuit that must be defended against.

Without that 12 year period of patent protection, generic drug companies could usually start making cheaper products almost immediately. There would be no reason for pharmaceutical firms to continue to pump a billion dollars into any drug if it's never going to see its return on investment, so innovation would end. The search for a cure for cancer, or of the many chronic conditions such as lupus, muscular dystrophy, etc., would end because there's no profit to be made even if they succeed.

That's the general argument in favor of patents. As a society, we pay the creative and smart people to keep being creative and smart. Do I want them to stop innovating, and not create the cure for whatever disease I'll come down with in 3-5 years? I certainly hope not!

The question here is: does this imply the same for software patents? Not even close. The bar to entering the software market is non-existent. Anyone with a computer and internet connection can download a professional quality operating system and developer studio for free, take online courses in everything from programming and calculus to software engineering, and start innovating almost immediately. It costs them almost nothing to produce and deliver their products, and they have limited to no liability to the users of them. In contrast to the hundreds of pharmaceutical firms, there are millions of developers. Innovation is going to happen continually with or without patents. And innovation is global: what is created in Shanghai can be downloaded in Chicago in seconds.

Even if Bilski is kind of an "end run" around the general issue of patents on software being a bad idea, they should still be prohibited before they make the United States a pariah of developed software.

Re:indeed

[sixsixtysix]

i think it is analogous to copyright's original good intentions. you know, the monopolies being temporary to encourage growth, and the abuse that followed. i think both are quite flawed and no longer serve the interest of the public, the other party in these "social contracts".

Re:indeed

[wizardforce]

I never mentioned the pharmaceutical industry, I just said *most* industries are not stimulated by patents. It is however, quite possible that patents are sub-optimal even in the two industries that CATO mentions as seeing a benefit from patents (drug and chemical industries). I think that with all we have learned about economics that we could develop a better system than our 200+ year old patent system to encourage worth while R&D.

Re:indeed

[Theaetetus]

The question here is: does this imply the same for software patents? Not even close. The bar to entering the software market is non-existent. Anyone with a computer and internet connection can download a professional quality operating system and developer studio for free, take online courses in everything from programming and calculus to software engineering, and start innovating almost immediately. It costs them almost nothing to produce and deliver their products, and they have limited to no liability to the users of them. In contrast to the hundreds of pharmaceutical firms, there are millions of developers. Innovation is going to happen continually with or without patents. And innovation is global: what is created in Shanghai can be downloaded in Chicago in seconds.

Even if Bilski is kind of an "end run" around the general issue of patents on software being a bad idea, they should still be prohibited before they make the United States a pariah of developed software.

And without even addressing your question - which is a good one, and worthy of hours, if not days or months of debate - I ask this: is this a question for a legislative body with power to amend and redraft patent laws, or a question for a judicial body with power to interpret laws as they are currently written? 35 USC 101 allows patenting of processes. Software is processes. Therefore, software is patentable... provided it doesn't fall under one of the narrow judicially-created exceptions. If software shouldn't be patentable - which is a different question than "is software patentable" - then Congress is the one that should amend 35 USC 101 to exclude software, not the Supreme Court. Otherwise, they're merely being activist judges.

Re:indeed

[Adaeniel]

The search for a cure for cancer, or of the many chronic conditions such as lupus, muscular dystrophy, etc., would end because there's no profit to be made even if they succeed.

You forgot about academic research. There are people out there that want to solve a problem purely to solve a problem.

Re:indeed

[drinkypoo]

OK, let's look at one of the industries most reviled for price gouging in America: pharmaceuticals.

yes, let's. When one of their drugs is about to go generic, or has even just lost its buzz in the media, they make a slightly different version of the same drug, receive FDA approval for the new drug on the basis that it ought to perform similarly to the old drug, and some extremely minimal testing which only must ensure that it is less harmful than a placebo. They then market the new drug as the best treatment for an ailment when in fact they do not really know if the new drug is more or less effective, since the study sample size is not large enough to determine that. Then you get Zyprexa.

There is no fucking way that big pharma deserves any slack. None. Record profits, just like big oil. No fucking way.

Re:indeed

[Anonymous Coward]

I know you're only using "Big Pharma" as an analogy (you couldn't think of any car manufacturers that fit the bill?), but remember that they receive part of their R&D funding from taxpayer dollars. Perhaps not all of it, but I don't think the portion is non-significant.

If I can use your analogy for you, at least some R&D in software, and likely a non-significant amount, is done in universities, a number of which are funded by taxpayer dollars.

Let's not forget the insanity that occurs on the "other side" of the patent war, where large institutions claim an idea whose genesis was funded by the citizens of the U.S.A., and who then miss out on immediately benefiting proportionally.

m!

Re:indeed

[Shadow of Eternity]

You're absolutely right.The SCotUS should have just interpreted the question of segregation as it was written, not decided that it was entirely unacceptable as a whole and thus needed to be thrown out...

Re:indeed

[causality]

For the moment, let's ignore all the criminal and other misdeeds of big pharma (phony studies "proving" generics are bad, misleading marketing to doctors and politicians including golf trips to St. Andrews, selling pointless medicines for not-serious conditions such as "restless leg", "weak boners", etc.,) and focus on just the patent portion of this.

You can decide to disregard that and pretend that it doesn't matter, but really this tells you quite a lot about with whom you are dealing when your focus is the pharmaceutical companies. More on that in a moment...

Without that 12 year period of patent protection, generic drug companies could usually start making cheaper products almost immediately. There would be no reason for pharmaceutical firms to continue to pump a billion dollars into any drug if it's never going to see its return on investment, so innovation would end. The search for a cure for cancer, or of the many chronic conditions such as lupus, muscular dystrophy, etc., would end because there's no profit to be made even if they succeed.

There is a single glaring flaw in your reasoning. There is one thing that pharmaceutical companies absolutely cannot do and have no hope of ever accomplishing: they cannot make a profit from healthy people. What are in my layman's opinion (I am not a doctor) designer diseases such as the restless leg syndrome that you mention are one of their responses to this dilemma. Advertisements that market prescriptions to the general public when the necessary medicine is supposed to be the doctor's decision are another response to the same dilemma. Likewise, they have no incentive whatsoever to cure anything, even when it is within their power; in fact they have a strong incentive against doing so. They have plenty of incentive to come up with medicines that you might call ongoing treatments, because they guarantee an ongoing source of income.

Anything that remotely smells of this kind of motive doesn't deserve the protection of a government monopoly. So, I really don't see how patents are helping this situation. They seem to be protecting the cash cow more than anything else.

Re:indeed

[Anonymous Coward]

As a diabetic, this issue has been a major concern for me and people like me for a long time. There is big money being made is treating diabeties, money that would stop if there was a cure.

Re:indeed

[plover]

If software shouldn't be patentable - which is a different question than "is software patentable" - then Congress is the one that should amend 35 USC 101 to exclude software, not the Supreme Court. Otherwise, they're merely being activist judges.

First, the phrase "activist judges" was created as a political hot-button codeword to try to sway people emotionally instead of rationally. It's a ploy to discredit the work of the legal system using fear and anger instead of logic and reason. It has no place in a legal debate.

And in the case of patents, your argument is not correct. 35 USC 146 clearly states that the U.S. Court of Appeals for the Federal Circuit is to make the decision in case of a disagreement with a ruling of the Board of Patent Appeals. Congress explicitly granted the courts (whether they be "activists" or not) the power to decide these cases. And Bilski is one such case.

Because our legal system is based on precedent, not just on written law, a case such as Bilski can have a ripple effect on other similar decisions. Sometimes I'd rather have a system like the Swiss courts, where each case is tried on its own merits and judged only against the law, not against how the courts ruled on your neighbor's case. But we have what we have.

35 USC 101 is very simple, and says on its face: "subject to the conditions and requirements of this title." That means that it's not simply "processes are patentable", but you have to go through the entire document to make that determination. Reading further, in MPEP 2106.01, you can see some of those requirements that are relevant:

"Since a computer program is merely a set of instructions capable of being executed by a computer, the computer program itself is not a process and USPTO personnel should treat a claim for a computer program, without the computer-readable medium needed to realize the computer program's functionality, as nonstatutory functional descriptive material. When a computer program is claimed in a process where the computer is executing the computer program's instructions, USPTO personnel should treat the claim as a process claim. ** When a computer program is recited in conjunction with a physical structure, such as a computer memory, USPTO personnel should treat the claim as a product claim. **"

They specifically state here that a program is nonstatutory (not patentable) unless the program is supporting a patentable process. In the case of Bilski, the program is supporting their process. The real question is still if Bilski's business method patent is valid.

Re:indeed

[plover]

Record profits == capitalism in action. It's more American than apple pie.

I don't begrudge someone the right to make money, at least not when they play within the boundaries of the system. If 50,000 tone-deaf idiots want to give Britney Spears $100 each to hear her sing into an Auto-tune system for an hour, then Britney wins at capitalism.

Of course, Big Pharma is well known for not playing within the rules, and is certainly not above bribing 75% of Capitol Hill to get their way. But the answer there is to bring them back in line with the rules, not to change the process so they can't make "record profits."

Re:indeed

[Anonymous Coward]

The difference is that the pharmaceutical drug has an exact formula, and THAT's the thing that get patented.

If pharmaceuticals where treated exactly the same way as software patents, someone would make a drug that cures a headache. Than patent the "method to cure a headache", making it impossible to make any other drug that treats a headache.

Result - you could end up with only one drug from one manufacturer that can threat a headache, an NOBODY ELSE can make another (and probably better) drug that does the same.

That's the difference!!!!

Re:indeed

[drinkypoo]

Of course, Big Pharma is well known for not playing within the rules, and is certainly not above bribing 75% of Capitol Hill to get their way. But the answer there is to bring them back in line with the rules, not to change the process so they can't make "record profits."

My point, to which you seem to have twigged only halfway, is very much that they ARE playing within the rules, and that the rules stink. If we have a government where spending more money on lobbying works better, and we permit patents to be used as they are, then the natural consequence is that they will be abused to the detriment of society. Patents are a legal fiction intended to benefit society. QED, if they don't do that, they should be abolished. Humanity will not lose its interest in fighting illness if we stop attaching profit to impeding the process. Much of what big pharma does is in fact harmful to the process of healing illness, simply because they are willing and able to sell ineffective or partially effective products.

I'm not arguing that we should eliminate capitalism, but that government intervention in the form of patents is half-assed. I don't complain about the size of the profit, I complain about the size of the ill-gotten profit.

Re:indeed

[InvisibleClergy]

So... researchers solve problems just because they want to solve the problem? Not because they are paid for by universities? "Oh sure, I'll somehow make the quarter-million dollars I'll need for the research for this project, then spend it on the highly-specialized machinery necessary to do the experiments to figure out this vaccine. Out of the goodness of my heart. Down with copyright law!"

You forget, sir, that most academics are capitalists.

Re:indeed

[InvisibleClergy]

So, let me get this straight. You want it to be direct source-code that gets copyrighted. OK, I'm going to copyright the following code:

while (i > 0)

WATCH AS THE MEELIONS START FLOWING IN!!!11

Re:indeed

[InvisibleClergy]

Wouldn't a better solution be to outlaw lobbying? Ignoring the political and legal feasibility of such a task, it would cause good laws to emerge from the ensuing political wreckage.

Wouldn't that be great?

Re:indeed

[Anonymous Coward]

Nope - that's only the part of the code - not a fished product.

If drug companies could patent "Potassium" an "Chlorine" they could get payed for all salt in the world.

But that's not what I am saying. I think patents on software should not be used at all!!! (And you just gave a perfectly sensible reason to reject patents on software). I think software could be copyrighted (for a complete finished product), but nothing more!

Software patents are the biggest hindrance on software development progress at this moment. A LOT of promising products are stopped being developed just because of software patents. If this goes on then within a few years only some big company's can write software, but nobody else - just because it becomes to expensive to write even a few lines of code. Those few lines could easily violate a few hundred patents that have to be payed for (IF you are allowed to use them that is), making even the simplest programs incredibly expensive. Nobody in his right mind would write software any longer.

This is only for America. The rest of the world would progress on without any hindrance of those stupid software patents, leaving America as the potential "third world" of software development.

Re:indeed

[ortholattice]

Don't forget, for each useful drug they invent, they also invest millions on drugs that don't work, or drugs that are eventually shown to have toxic side effects and must be pulled from the market. And just about every death that occurs while a patient is taking their drug ends up with a lawsuit that must be defended against.

I thought the $x to develop the drug already included the cost of rejecting drugs that don't work, as well as an actuarial estimate of liability (e.g. cost of such insurance if not self-insured). If not, then it should be included (and what would that number be?) - otherwise, the rest of your argument becomes hand-waving rhetoric.

Re:indeed

[SlashWombat]

One of the problems I see is where software overlaps hardware ... For instance, JPEG (or for that matter, MPEG) Are covered by patents. Although the engines can be described in Actual hardware, they are generally described in software. As computer hardware gets faster, more machines will be described in software before they are implemented in hardware, yet, as I see it, these inventions are worthy of protection via the patent system. (However ... The JPEG patents are held by several different people/organisations, as the patents are all on seperate pieces of the actual algorithm ... So perhaps patents should not be allowed for such narrow specialities. I also wonder about the "novelty' of some of these patents ... I would argue that many of them would have been invented by most people active in a particular field ... Not requiring genius to produce the invention.)

Re:indeed

[MartinSchou]

If it took them $500 million dollars to create the drug, and they have only 12 years to sell it, they have to make more than $500 million dollars to make the investment worthwhile. Don't forget, for each useful drug they invent, they also invest millions on drugs that don't work, or drugs that are eventually shown to have toxic side effects and must be pulled from the market. And just about every death that occurs while a patient is taking their drug ends up with a lawsuit that must be defended against.

Okay. Let's for the sake of argument say that their other costs are about 11 times the cost of each successful drugs. Now they have to earn US$ 500,000,000 a year. That's US$ 1,368,955 a day. If each pill have a gross profit of US$1.00 after direct production, distribution costs and tax, they now have to sell 1,368,955 pills a day. That's 0.46% of the US population buying one of these pills a day (well, more like packets of 30).

Since they have FDA approval and world wide patents, they have access to the EU as well. That's another almost 500,000,000 potential patients. Now we're looking at 0.18% of the potential patients needing to be on this drug. The Australian continent is ~30 million people, but that won't make much difference.

[...]they charge anywhere from $100/month to $1000/month or more

That's US$3 to US$33 per day. Then all the other costs (production, distribution, tax etc.) can still be US$2.00 to US$32.00. This is per pill, and I really doubt that the costs are that high for anything in those sizes.

I'm not saying patents on medicine is a bad idea (though at times, governments do need to ignore them to keep their population safe). Just that the money in medicine probably aren't quite as tight as you make it seem.

Re:indeed

[benjamindees]

I think it's typical, even human nature, to assume that "barriers to entry" in an industry with which you are not as familiar are necessarily much higher than those in your own industry.

The fact of the matter is that good education is expensive, competent programmers are few and far between, and the Mt. Dew and Cheetos required to support them for the period of time required to make truly significant breakthroughs in computer science don't come free.

And in saying this I by no means want to argue the philosophical implications of patenting abstract ideas. That's completely beside the point I want to make.

It's just that software may seem at the moment to be less deserving of patent protection due to lower capital requirements or lower barriers to entry. But I think if you take the time to really research some other industries, you would find that as a relatively nascent field, software is currently in pretty much the same position in which every other industry started out, in which the amount of knowledge required was high and the amount of capital required was low. And that even in many industries that today we think of as capital-intensive, such as pharmaceuticals or chemical refining or energy production, barriers to entry are not quite as high as you might think.

Re:indeed

[Anonymous Coward]

Patents do not "destroy competitors" - customers buying your product destroy your competitors.

Re:indeed

[MarceloR2]

They may be capitalists but they must be very bad ones as most, emphatically not all, could easily be making more money outside of academia.

Re:indeed

[janwedekind]

There would be no reason for pharmaceutical firms to continue to pump a billion dollars into any drug if it's never going to see its return on investment, so innovation would end. The search for a cure for cancer, or of the many chronic conditions such as lupus, muscular dystrophy, etc., would end because there's no profit to be made even if they succeed.

I think that's the core of the issue. Creating software or writing articles neither requires extensive clinical testing nor expensive equipment (these days). However regarding pharmaceuticals you need to keep in mind that the principle of excluding everyone who can't pay for medicaments means killing people. Furthermore pharma like any other business will not stop at recovering their costs. They will go all the way and they will patent trivial changes to their pharmaceuticals to extend their monopoly (see Pfizer's Lipitor). You may think that a statutory health insurance would solve this problem. But for example in Germany doctors have a limited budget for pharmaceuticals depending on the number of patients. So even in a country with statutory health insurance many people suffer or die even though there is a cure!!!

Re:indeed

[Lorien_the_first_one]

I agree with your statements on software, but I disagree with your statements concerning innovation in health care without patents. Here is a case in point: China. For 5,000 years, they developed a highly success philosophy of medicine that is still practiced today, without patents. We don't see them seeking patents on plants or molecules to support their industry (or least we didn't until they joined the WTO). And besides, the statement "patents encourage innovation" is *still* an assumption. There are simply no studies that prove that patents are a net benefit to society.

On the other hand, it might be that the facilities and the investment required for innovation in medicine should be paid for by the government and treated like a utility. The really smart people will still get paid, but not like the patent lottery that we have now. One question I never see asked is this: when drug companies patent medicine and accept the benefits, are they willing to lose the patent if the medicine kills people? I know, it seems to be a bit of a pedantic question. But all too often, I see corporations reaching for the benefits but being unwilling to accept the liabilities.

And there is one last point I'd like to offer for consideration: patents are essentially government intervention in the markets. A medicine for which the marginal cost of manufacture is $4, is sold for $1000. This is partly due to the cost of testing required to get the drug approved. This is also a part of the rent-seeking behavior of patentees. Once a drug is patented, we're treated to an endless medley of melancholy drug commercials, ruthless marketing of the same drug to doctors, and lawsuits. I would like to see the Bayh-Dole Act repealed and have government research put into the public domain. If private entities want patent royalties, they can do it with their own money.

I can't say that I know the answer, but what we're doing isn't working too well. I'd like to see how it works without patents at all.

Re:indeed

[Lorien_the_first_one]

Wait...if software is *just* math, should it be patentable?

Re:indeed

[Anonymous Coward]

You ignore, with the drug industry, two "minor" things. First, the bulk of the basic research that leads to these new drugs is done in universities, paid for (mostly) by taxpayers. The people who make it possible for the drug companies to make their products get approximately nothing in return. It's very much like how we give away mineral rights on public lands where we should be charging market rates for them, but frankly a lot worse. Second, the drug companies are absolutely famous for taking a drug that's about to go off-patent, changing it around just a tiny little bit so they can get a new patent, and then marketing the "new" drug as something wonderful when in fact it's mostly the same as the old drug.

There are no benefits to society in either case, and part of the purpose of having a patent system in the first place is to provide a benefit to society as well as to the patent holders

Re:indeed

[Anonymous Coward]

But the answer there is to bring them back in line with the rules, not to change the process so they can't make "record profits."

Actually, it should be. Pretty much nothing could be further from the truth that obscene profits are more American than apple pie. The founders feared this. They feared it for reasons we are seeing played out right now: too much wealth concentrated in too few hands is capable of distorting our political system to the point where it doesn't matter what We the People want.

None of the founders were more wealthy than what we'd call upper middle class. Many died quote poor (Thomas Jefferson, for one). NONE of their families live off of inherited wealth today. After the Revolution, almost all of the "millionaires" in the US went back to England, or to Canada, because there was nothing protecting their dynastic wealth here. Corporations were barely tolerated--they had a limited life span, they were limted to doing only one specific line of business, and if they were found to be not acting in the public interest they would be dissolved. The very notion of a non-human entity that could conduct legal affairs as a person was repugnant to people of that era, and for good reason--they had to put up with the excesses of the British East India Company. (You do know that the Boston Tea Party was not brought about by a tax increase, but by a tax cut given only to that one multi-national corporation, right?)

These very common-sense legal protections of natural people changed with the robber-baron railroad era, and has now become exactly, precisely what the founders did not want to see. We now have extreme concentration of wealth in very few hands, which is being used to distort our system of government. Worse than that, so many people's minds have been poisoned to think that unreastrained profits are a good thing.

Before the flames come on, I'm not talking about people being successful or being rewarded for their hard work. I'm talking about the sorts of financial obscenities that we seem to encounter on a daily basis these days that are exactly the opposite of people being rewarded for hard work.

Re:indeed

[drinkypoo]

As you point out, this is basically invisible. I do have some ideas on lobbying reform, though. One: All interactions regarding public policy must take place in the representative's (congressman's, whatever I should be saying — the terminology is contradictory and thus stupid but we're stuck with it for now) office. Two: all such conversations will be recorded and the recordings published as soon as is possible within the confines of national security, but with a time limit not to exceed... something reasonable :) Eliminating unnecessary secrecy from government is one key to reform. You can NOT eliminate lobbying, but you can institute further transparency.

Re:indeed

[Anonymous Coward]

With R&D costs approaching 1 Billion USD per approved drug please suggest a better method cos I cant think of one. I don't see too many industries forking out that amount on R&D per product.

The same drug with different Isomers can have radically different effects on human biology, making a slightly different version of a drug WILL have different properties (both therapeutic and safety) and so get tested the same as all other drugs (unless government gets involved and want the drug BEFORE testing is complete - ie not pharma fault - as happens way to much these days).

Pharma price gouging is a seperate issue from patients and yes, price gouging needs to be addressed, but without Patients no-one in their right mind would do Pharma R&D.

(Disclaimer : IT guy in Pharma)

Re:indeed

[Tweenk]

As computer hardware gets faster, more machines will be described in software before they are implemented in hardware, yet, as I see it, these inventions are worthy of protection via the patent system.

We must cease seeing ICs as hardware, they're actually a combination of hardware and software. Fabrication technology and the physical layout of a given chip might deserve patent protection; IC logic doesn't, because it is software.

Re:indeed

[Cajun Hell]

Reminds me of an argument I recently had with a lefty. He thought government should do everything that business doesn't have the foresight to do. What's funny is that he was flaming religion just half an hour earlier -- organizations of people that are neither motivated by civics nor (barring Catholics) profits. People do so many things for so many reasons, some of them crazy and some of them brilliant. But talk politics with them and suddenly dollars are the only motivation that anyone has. Yeeeah, riiight.

Academics, hobbyists, philanthropists, religious nuts, crackpots: apparently none of these people exist!

Re:indeed

[Anonymous Coward]

Without that 12 year period of patent protection, generic drug companies could usually start making cheaper products almost immediately. There would be no reason for pharmaceutical firms to continue to pump a billion dollars into any drug if it's never going to see its return on investment, so innovation would end. The search for a cure for cancer, or of the many chronic conditions such as lupus, muscular dystrophy, etc., would end because there's no profit to be made even if they succeed.

OK, so you want to give private companies an incentive to cure diseases. What makes you think patents are the best answer? Let's say they cure cancer. Do you want only the affluent to be able to afford it during the patent duration, or would it be better that it cost what generics cost immediately and there be some other incentive for research?

There are much better ways to solve this. If you want to cure cancer then you do it the same way we got to the moon: Take some tax money and subsidize it. If you want to attract private capital then use X-prizes. In no event is it the right solution to create a monopoly and allow it to limit the 'good' you're trying to create.

Re:indeed

[scamper_22]

and your problem with this practice is what exactly?

The generic drug is available. Your friendly doctor should prescribe the generic version for you.

Re:indeed

[rgigger]

I have heard this narrative many many times and I am not doubting it's accuracy. But what I don't understand about it is: If it's such a big problem, can't the entire Medical industry just keep using the old stuff? Especially now that it's gone generic? With so much on the line is the entire industry unable to make decisions based on the medical efficacy of a drug and not based on pure marketing? Let the pharmaceutical company go make their stupid one off variant that is still patentable while doctors just switch over to prescribing the generic form of the old drug. I have wondered about this for some time, why are doctors not able to subvert this shady tactic???

Re:indeed

[Anonymous Coward]

The patents are applied for and issued during the development. Furthermore, a drug may and often does have more than one patent. After a drug is approved for sale, it typically only has around 6 or 7 years of exclusivity left. It depends on how quickly the research is concluded and whether the FDA furthers data. The average cost of producing a drug is a figured that is created from an industry average where total R&D expenditures are divided over the drugs and devices that are approved for sale, which amount to less than 10% of total development. That number was just under $1 billion USD a year or two ago.

Re:indeed

[drinkypoo]

I have heard this narrative many many times and I am not doubting it's accuracy. But what I don't understand about it is: If it's such a big problem, can't the entire Medical industry just keep using the old stuff? Especially now that it's gone generic?

There are two problems with this. One is bogus medical journals; Elsevier got busted publishing an entire bogus journal for Merck. So big pharma is actually being permitted to publish misinformation as if it were peer-reviewed, which makes it difficult to impossible for medical professionals to know if they are getting good information. The other biggest problem is that the control of generics into most countries is tightly controlled; they are denied on a variety of bogus bases. So in many cases, it is simply not possible to cover the generics. In other cases, insurance companies and even the public health system often denies access to the most efficacious treatment; I haven't followed the chain here, though, and I know too little about how the system works to understand how the money is flowing there.

Scope for arguing about software patents

[H4x0r Jim Duggan]

Will this section be worth anything if neither party is actually asking for software patents as a whole to be thrown out?

Yes. The court's job is to decide on the point of law and it's not limited to following the request of either party.

The last paragraph of FSF's Interests of Amicus Curiae notes: Notwithstanding the contrary assertion at sec. I.C.3 (pages 36-44) of Respondentâ(TM)s brief, the Foundation submits respectfully that this case is an appropriate one to address patenting eligibility of computer software. Several amici aligned with both parties of this case so regard it and indeed the court of appeals eschewed a categorical exclusion of business methods and, instead, applied the machine-transformation test to a claimed process which was implicitly software-based though not reciting software directly in its broadest independent claim.

Like how the CAFC's machine-or-transformation test excludes some software, the SC can install a different test with broader or narrower scope.

Re:Scope for arguing about software patents

[Quothz]

Will this section be worth anything if neither party is actually asking for software patents as a whole to be thrown out?

Yes. The court's job is to decide on the point of law and it's not limited to following the request of either party.

That's true, but they are limited to ruling on the case at hand. SCOTUS has long held that the Constitution limits them to declaratory judgments, that is rulings that involve an actual dispute before them. SCOTUS will not rule that software patents are unconstitutional because they don't promote science and the useful arts in a case about business method patents.

They may, however, rule that machine-independent patents fail that test. However, I suspect they won't, since it's a stupid argument--Congress, not the courts, is given the discretion to choose how to promote science and the useful arts. They may well strike down machine-independent patents, but I highly, highly doubt they'd second-guess Congress based on such a subjective criterion as whether it promotes good stuff, or at least explicitly.

Mind you, even if SCOTUS does lay the smackdown on machine-independent patents, we'll still be in for round two: Whether a compatable computer is a specific-enough machine for patents to stick to it. Unless they rule very broadly, which would be very untypical of SCOTUS, that question will have to go through a full judicial vetting before the question of software patents is settled.

Re:Scope for arguing about software patents

[H4x0r Jim Duggan]

This isn't so much a business methods case as it is a case of Bilski's patent. The CAFC rejected Bilski's patent and installed a test, and some of the patents that will fail that test are what we call software patents.

There's no "business methods" line that the CAFC or SCOTUS have to stay within, and FSF's request is just for upholding of the CAFC's test and a clarification about when a computer (such as is used by Bilski's patented system) is or isn't a "particular machine".

I take your points, but I still see this as by far the biggest chance we're getting this decade to fix this problem.

Re:Scope for arguing about software patents

[Anonymous Coward]

> They may, however, rule that machine-independent patents fail that test. However, I suspect they won't, since it's a stupid argument--Congress, not the courts, is given the discretion to choose how to promote science and the useful arts.

Don't be so sure. It's nothing more than a court precedent that created software patents. The only reason software patents are considered valid is because a court decided that software can't automatically be excluded about a decade ago and people have been wedging open the door ever since.

The court created software patents. It can also destroy them. (After which, Congress would be lobbied to reinstate them, of course.)

Re:Scope for arguing about software patents

[Teancum]

A constitutional challenge might limit what congress could do in this case however. You can argue that perhaps the courts don't care about the constitution, but a constitutional argument against a provision effectively even kills the options even for congress. The only legitimate alternative is to amend the constitution, or to repeal constitutional review by the U.S. Supreme Court (something give to SCOTUS by law, not by the constitution).

The one precedent that had SCOTUS establish a constitutional precedent where congress did eventually overturn that rules was with the internal revenue code (aka income taxes). It was overturned due to the fact that a new amendment was passed that explicitly permitted such a law to be enacted. That is a rather drastic step, and one that also requires the confirmation of a majority of the states as well. Certainly a back-door insertion from a minor bill won't get such a constitutional challenge overturned easily.

Of course that is also one reason why SCOTUS is very hesitant to give out constitutional challenges to laws, such as in Eldred_v._Ashcroft when a constitutional challenge was presented to copyright law passed by congress over the interpretation of the copyright clause. A similar argument could be made in this particular patent case under review as it also presents a constitutional challenge, and IMHO the constitutional arguments are actually weaker than in Eldred.

Re:Scope for arguing about software patents

[Ifni]

I guess we're about to find out how corruptible SCOTUS is...

It will be good if this passes, but...

[petrus4]

...it leaves a bitter taste in my mouth.

I have grown to hate both the SFLC and the FSF, personally. The two organisations have proven themselves as breeding grounds for fanatical trolls (Bradley Kuhn, Stallman, and their followers) who harm the public image of FOSS, and who cause much division and conflict.

The problem with scenarios like these, is that they give people like Stallman and Kuhn the idea that there is valid justification for their existence. If the Supreme Court ends up making a beneficial decision here, you can be sure that the FSF and SFLC will take full credit for it.

This could, in turn, have the deeply undesirable outcome of giving the FSF renewed relevance and public favour, at a time when community opposition to them has never been higher. In terms of his public image, Richard Stallman is potentially on the ropes right now, and I do not want to see him given the opportunity to recover.

The end of software patents could only be a good thing, yes, but it needs to be a victory for software developers in general; not merely a PR or false moral victory for the FSF.

The enemy of my enemy, is not my friend.

Re:It will be good if this passes, but...

[Trepidity]

But it would show that there is valid justification for their existence. Who started up a campaign to end software patents? It wasn't Novell, or Red Hat, or the Open Source Initiative; it was these folks. The FSF is willing to take unpopular hardline pro-freedom positions long before they become politically correct enough for the "respectable" FOSS groups to hop on the bandwagon.

Sort of analogous to how I think there's a good reason for the existence of folks like Dennis Kucinich, Ron Paul, and other people pursuing principled but somewhat inflexible positions. I might not want them as president of the world, but I like them being around.

Re:It will be good if this passes, but...

[petrus4]

But it would show that there is valid justification for their existence. Who started up a campaign to end software patents? It wasn't Novell, or Red Hat, or the Open Source Initiative; it was these folks. The FSF is willing to take unpopular hardline pro-freedom

If the FSF were themselves willing to accept the role of fringe legal attack dog, (and that *alone*) I'd be more than happy to recognise their part of the overall FOSS ecosystem on that basis.

The problem is that they're not. Stallman wants everyone to think the way he does.

We need to get rid of the cultic element, more than anything else. If they can legally help FOSS developers in an overall sense, and do it in a constructive way, that I have no issue with.

It is their hate, their fear, and their paranoia which need to go. I don't have a problem with Bradley Kuhn at all because he can be of legal benefit in protecting FOSS; I have a problem with him because he behaves like a rabid rottweiler/human hybrid, who apparently will not rest until everyone else on the planet thinks in exactly the same way he does.

Re:It will be good if this passes, but...

[unity]

"Sort of analogous to how I think there's a good reason for the existence of folks like Dennis Kucinich, Ron Paul, and other people pursuing principled but somewhat inflexible positions. I might not want them as president of the world, but I like them being around."

Then again, where has electing people that aren't adherents to principled inflexible positions gotten us? Maybe principles do matter after all....

Re:It will be good if this passes, but...

[Nevyn]

Who started up a campaign to end software patents? It wasn't Novell, or Red Hat,

Red Hat has always taken the stance that Software Patents are bad and should die, and I would bet they have done much more to further this goal than the FSF. If only because they are a company, and have much more money.

Re:It will be good if this passes, but...

[causality]

The problem is that they're not. Stallman wants everyone to think the way he does.

The moment he has gains the ability to force me to think in any particular way, that's the moment I will worry about this.

It is their hate, their fear, and their paranoia which need to go. I don't have a problem with Bradley Kuhn at all because he can be of legal benefit in protecting FOSS; I have a problem with him because he behaves like a rabid rottweiler/human hybrid, who apparently will not rest until everyone else on the planet thinks in exactly the same way he does.

Then he may never have rest. That, however, is his problem. I still don't see why this concerns you, or why it should concern me. Anyone who feels otherwise is free to join the useless controversy that you opine, and that would be their problem as well. This isn't a danger whatsoever until and unless a) we accept more and more authoritarian intervention in our lives and b) someone who acts this way becomes politically powerful under such an authoritarian system to where he can use the force of law to impose his beliefs on unwilling people. Until that day, everyone who gets caught up in this or any other controversy has chosen to do so and I see nothing unfair or unjust about that.

Neither Richard Stallman or Bradley Kuhn can use force to make you to listen to them, nor are they seeking a means of doing so; therefore one fact remains: if you don't like these guys, the worst thing you could ever do to them would be to ignore them. If you do like them, you may appreciate that they are willing to take a stand on issues like this even though they catch a lot of flak for it. Either way, I just don't see what the problem is.

Re:It will be good if this passes, but...

[petrus4]

Neither Richard Stallman or Bradley Kuhn can use force to make you to listen to them, nor are they seeking a means of doing so;

They've actually proven that they *do* want said means. They proved that with the alterations made to version 3 of the GPL, as well as having spoken about wanting Novell (as a single entity) being banned from distributing software licensed with the GPL.

Your response to this will likely be to launch into a diversionary argument about how that was completely justified. That, however, is irrelevant.

The simple fact is that in those two individuals' minds, following the legal letter of the GPL by itself isn't enough. You also have to follow the "spirit," which as I said, translates into thinking exactly like them. They don't want people to merely comply with their license; they want members of a cult where their word is law.

Re:It will be good if this passes, but...

[icebraining]

How can that force anyone to do what they want? Are you forced to use GPLv3? That doesn't give them any power, you can continue to use GPLv2.

Re:It will be good if this passes, but...

[roju]

Except that the FSF and Stallman likely inspired that view in Red Hat.

Re:It will be good if this passes, but...

[alexo]

Stallman wants everyone to think the way he does.

The moment he has gains the ability to force me to think in any particular way, that's the moment I will worry about this.

No you won't. He won't allow you to.

Talking of abstact ideas

[T Murphy]

Can't business method patents fit into similar arguments? I have never heard an explanation why business method patents are allowed in the first place, so I suppose until I do I can't evaluate how good the reasoning is, but being abstract I see no reason for them to be patentable.

(I realize I could go search for the answer, but I assume more people would be enlightened if someone explains this instead).

Re:Talking of abstact ideas

[plover]

Bilski is an abstract business method patent, and that's exactly why it's been thrown out by the court of appeals. Yes, they patented software to do the computations, but in the end it's a process more than just software.

(Their process is that of selling a lot of people "fixed cost" subscriptions to a service that can have a variable cost, such as heating fuel in the winter, and then using the leverage of that large group of people to drive down the sellers' bids on the fuel, and making a profit on the difference.)

We're all expecting/hoping that if Bilski is thrown out because it doesn't meet the "tangible transformation of a thing" test that the software component will also be thrown out for the same reason.

Software patents in general kind of just happened by accident. If I recall correctly the first software patent was for a chemical process that used a computer to operate valves to moderate the reaction, and from there the lawyers have just ignored the chemistry part and decided "software is patentable." It's never been challenged like this before, so we're all crossing our fingers and hoping they die and stay dead.

Re:Afro-American Racism Against Whites and Asians

[Anonymous Coward]

Yes, but you're entire argument is based on a sort of circular reasoning. You seem to be asserting that 'all' African Americans (or at most 95%) are racist, but this is a racist mode of thinking. You say that a maximum of 65% of any racial group can support Obama without being racist, but wouldn't this also apply to African Americans? Isn't it more likely that 65% of African Americans are not racist and would not have voted for Obama if they did not feel he was the best qualified candidate? If this is the case than around 30% (95%-65%) of African Americans could be considered racist. I suspect this figure is about the same for all races and thus McCain's final numbers where inflated (i.e. around 30% of the general population voted for McCain on purely racial lines compared to only 15% on merit.) Additionally, by your line of reasoning shouldn't 95% or so of African Americans have voted for Jesse Jackson when he ran? No. the more likely answer is that race effects peoples decisions and there may even be a sizable minority of people who will vote solely on racial lines, however the majority of people take much more into account that simply a candidates race were not expressing "racial pride" or voting "solely due to the color of his skin."

Do Not Respond

[Anonymous Coward]

...to the CopyPasta troll.

Re:Do Not Respond

[Anonymous Coward]

Sorry. My original title was "Ignoring the fact that this is an offtopic troll"

Re:Do Not Respond

[Jurily]

Good job on not responding to the CopyPasta troll.

Glimmer of hope

[Anonymous Coward]

There is a faint (very faint) glimmer of hope that this will be the beginning of the end of stupid software patents. I have a bad feeling though, that.....

This is not the end. Its not even the beginning of the end. But it is perhaps end of the beginning. -Sir Winston Leonard Spencer Churchill

And if they decide you CAN patent abstract ideas?

[Shadow of Eternity]

I suppose it's a good thing we have prior art on the abstract idea of self ("I think therefore I am")...

more than you bargined for.

[Anonymous Coward]

unless i missed some fine print, this would also have a large effect on hardware. example: ARM processors. ARM processors are a matter of design, not a specific implementation of that design.

discuss.

Re:Your official guide to the Jigaboo presidency

[Anonymous Coward]

Man, some people are really, really dedicated! Whoever wrote this really put some time into it!

This is one of my favorite frosty piss copypastas.

Thank you for sharing your political ideas, sir. I regret to inform you that your ideas have miniscule chances of being implemented, because our society decided a while ago that this was horribly offensive and wrong, but you are, nonetheless, entitled to your opinion.

That is the thing about hard reality.....

[3seas]

No matter what excuse you use for doing something right, or wrong, the hard reality of the matter will always be what it is tested against.
Doing things wrong will result in problems.
Doing things right will remove problems.

The excuse used, either way, can often be nothing more than political babel.

Software is simply and provably not of patentable subject matter and it never was patentable when tested against hard reality.
And regardless that some seem to have a hard time accepting hard reality.

The hard and provable reality of the nature of software is that of Abstraction Physics

By Patent Law the three primary things that cannot be patented are, natural law, physical phenomenon and abstract ideas (where included in the abstract ideas is the abstraction of mathematical algorithms). But the reason why these are not patentable is not because of some law man made but because any law to the contrary is simply not enforceable in a manner of patents, that of denying others the right to use.

Or perhaps a patent can be issued on the human use of air or the ability to think or gravity..... and enforced.

Interestingly enough Software actually falls into using all three of these general and universally accepted non-patentable subjects.
There are natural laws governing the creation and use of abstractions and the application of abstractions (we create and use them for communication) has a physical phenomenon effect as we act upon what is communicated. And abstractions obviously represent ideas and as such are abstract ideas.

Many have argued the mathematical algorithm defense against software patents, but when it gets down to it, though the abstraction machine of computers boils it all down to transistor switches switching, there is a level where a program can be seen in terms of pure mathematical algorithms, there are also other levels of abstraction not so directly communicated in mathematical algorithm terms, most notably that of any of the many abstract programming languages we have created and even the fundamental first level abstraction of binary representation of on and off. But what is common is that all these levels are abstract.

There really is nothing patentable about software, but to the contrary, what all makes software possible is all universally considered non-patentable.

Its nothing but non-scientific politics that have wrongly rationalized software patentability.

     

Pharma sham

[Anonymous Coward]

100% of the funding for true research in pharmaceuticals comes from the federal government and other public institutions. Pharma companies then productize these inventions. They must spend a significant amount of money to do this, for example they must spend money (in order by amount!) on sales people to woo doctors, on focus groups to determine how to best market the produce, on attorneys to secure patents, and finally on some government mandated safety testing. All this on top of their enormous lobbying budgets.

Patents secure profit for someone, but seldom the creators of real breakthroughs.

What?

[benjamindees]

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States...

Notice how the Supreme Court has jurisdiction over Constitutional questions, in addition to just being able to "interpret laws"?

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;

And notice that the scope of patentability is a Constitutional issue?

35 USC 101 allows patenting of processes

US code doesn't allow patenting of business processes unless the US Constitution allows patenting of business processes.

Nice thought but it won't happen

[bl8n8r]

Too much money pushing in the other direction. Hate to sound cynical but freedom in any form is about money and neither redhat or sflc have enough of it to affect patent reform as it relates to software.

Software Patents are not univerally bad

[Btarlinian]

Am I the only one who doesn't think that software patents are universally bad? It seems to me like software is an algorithm which solves a specific problem. Take as an example, the relational database. The very concept of applying relational algebra to the organization of physical data was a pretty big step, which IMO, deserves more than a copyright. Simply arguing that software is just math is as absurd as saying that fancy new electronic device is simply the patenting the existence of the appropriate laws of physics that lead to working of stuff. I'd have to agree that right now prior art and obviousness is ignored far too often, but that doesn't mean the software patents shouldn't exist.

Why software patents don't contradict the first

[Anci3nt of Days]

This constitutional argument completely ignores the requirement that to gain patent protection, one must disclose a working embodiment of the invention - that is they must publish how their invention works. To exclude the public from exploiting a software invention by patent does not preclude the public from understanding how the invention works, talking about it, experimenting with the ideas or even ultimately deriving a new invention based on the original that is sufficiently novel.

Re:And if they decide you CAN patent abstract idea

[gnupun]

A patent is not abstract "I think therefore I am". It is a how-to guide for professionals in the field to recreate the invention.

Since RedHat does not invent anything, software patents are unjust because due to the protection they offer to inventors, OSS coders cannot copycat the invention and include it the RedHat distro, thereby driving RedHat's profits down. With software patents gone, RedHat can make money without doing much work by implementing various patented algorithms into products included in their distro.

Patents violate Freedom of expression: Phil Salin

[Anonymous Coward]

Phil Salin: www.philsalin.com/patents.html

What's different about writing a software program and a book? Both ought to allow freedom of expression.
Who should one have to worry about with someone else wrote?

Monopolization

[gibson042]

no patent law consistent with the US Constitution can permit the monopolization of abstract ideas

Because obviously, that's what copyright is for.

So patent the logic board, not software

[Anonymous Coward]

What's the problem with that?

The board is concrete and can (and must) be displayed in enough detail to recreate the circuit. If someone comes up with a tweak that makes it faster, then you have the patented improvements you can't get with software patents. If someone solves the problem with a very different circuit, then this is obviously a different "mousetrap" and can be separately patented. Something you can't do again with a software patent.

connect patent royalties to R&D costs

[jeske]

It might be practical for the system to self-regulate by connecting maximum lifetime patent royalties to reported technology R&D costs. Any R&D costs incurred by a company would be fair game to attribute to individual patents, but they would need to be attributed at the time of filing. Once an R&D dollar was attributed to a patent, it couldn't be reattributed to another patent. Falsifying R&D costs would be both easy to audit and a crime.

For drug companies, 30x R&D costs (including all the failed attempts) would be a healthy payout. For software companies, 30x the cost of a couple programmers over a couple months to 'invent' their patent might be what, $900k?

Of course there are challenges, such as potential games in pumping-up R&D costs. However, if a system like this were viable, it might eliminate ease the pressure on the patent approval process as companies would have an incentive to decide which patent was truly the most valuable and attribute all relevant R&D costs to it.