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Recipient of First Software Patent Defends Them
Arguendo writes "Martin Goetz, who obtained the first software patent in 1968, has penned a thoughtful defense of software patents for Patently-O. Goetz argues that there is no principled difference between software and hardware patents and that truly patentable software innovations require just as much ingenuity and advancement as any other kind of patentable subject matter. The Supreme Court is of course currently considering whether to change the scope of patentable subject matter in the Bilski case, which we've discussed before." Does it weaken Goetz's argument that his description of the software lifecycle harks back to the waterfall days and bears little resemblance to current development practice in open source and/or Internet contexts?
Patents by themselves weren't a problem back in 1968 and shouldn't be problems now either. The issue is how they are used as legal clubs to beat down competition with or simply as a way to make money through litigation alone.
The major problem is that most software patents were not awarded to truly patentable software innovations
I'd like to know this guys opinion on straightforward software patents like "the hyperlink", the virtual "shopping cart", ..., and "patent holding" companies.
patents protect the little guy who can't afford lawyers from big corporations.
I think that software patents are every bit as valid and valuable as every single patent on the wheel.
If you were blocking sigs, you wouldn't have to read this.
The big principle difference is that in the physical world we can discover new things and invent better ways to do existing things. I am yet to see a single software patent that I feel is really a new invention that requires protection. If someone can link me a software patent that they feel was a new invention and that others might benefit from then by all means, I am happy to be proved wrong...
The choice of implementation for computer functions is a pure economic choice which mainly has to do with cost, speed, and flexibility.
That's absolutely correct. And the reason that people choose software when they can get away with it, is because it generally much cheaper, faster to implement and more flexible. Which in turn results in completely economic effects of patent claims that include software implementations compared to claims that only cover hardware implementations.
The whole argument about software companies also performing state-of-the-art R&D should be irrelevant from a patents-point-of-view. Patents are not a natural right (they're not awarded because someone deserves them for whatever reason), but they are purely economic tools. And blunt and wide-reaching ones at that. Applying blunt and wide-reaching tools without discrimination just because some things are alike in terms of intellectual achievement does not necessarily have the same economic effects. Again: patents are not rewards, they're tools, to be applied with care where it makes macro-economic sense, not to protect certain business models at the cost of a huge overhead for an entire sector of industry.
And according to various economic studies (also includes citations from some political documents, feel free to ignore those), patents indeed don't have overall positive effects on in the software field. In fact, the 2003 report on innovation from the FTC came to the conclusion that patents are not very important to innovation in the semiconductor industry either (although slightly more so than in case of software, and their downsides are slightly less detrimental in that case). So the whole comparison with hardware and software does not necessarily lead to the conclusion that the author of the article envisions...
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All software is math, no exceptions.
You can't patent math.
Well, in the current state of things, you /can/ patent math, and that's something a lot of people are hoping is revoked.
Imagine if something like calculus had been patented, or the quadratic equation?
We'd be fucked, as a species.
For a concise, well written and much elaborated explanation, see "An Explanation of Computation Theory for Lawyers": http://www.groklaw.net/article.php?story=20091111151305785
Now, that's written specifically for lawyers, but it should be clear enough, perhaps more clear because of that, for most of the Slashdot crowd to get it - all software is math, no exceptions, and math should not be patentable.
In a word, no. It doesn't matter how or in what context you come up with something, it's whether it's sufficiently unique or not. And in any case, I am not sure why you refer to "current development practice" since that varies wildly from application to application, and the "waterfall" process is certainly still in full force for many serious programming applications.
Brett
No, really. And I say that as an outspoken opponent of software patent.
His most important sentence is It is obvious that software products are not "software ideas". - and that's what's wrong with the patent system. A hundred years ago, you had to submit a working model to get a patent. These days, you can patent software ideas and business processes.
When we speak about "software patents" we are really talking about monopoly rights on algorithms. And that's as stupid an idea as a copyright on a number.
What the author apparently means when he talks about "software patents" is a complete product, a working implementation of a concept that can be demonstrated to do what the list of claims contains. That's a bit of a different animal than about 99.999% of the software patents issued during the past 10 years.
And I agree that a bit of protection on that would be nice for those who invented it. We can discuss whether or not patents is the right tool, or copyright, or some new form, but that's not important.
Assorted stuff I do sometimes: Lemuria.org
Constructing a transform table from input/output observations will tell you what the black box does but it will not tell you how it does it. For example let's pretend I am a genius and I have figured out an analytical solution to the three body problem. You observe my black box and create a transform table. However without my insight you are still left scratching your head as to how the black box can perform the transformation so rapidly and accurately when the only known way to approximate a solution is via numerical analysis.
Clean room is a black box by another name. Again by definition you cannot know how the black box performs it's task (the algorithim). Sure you could guess the right answer but if it's that's obvious then why would it be patentable?
I certainly don't want people to give away their "hard work" and throwing out copyright would also throw out the GPL that my comrades here at socilistdot are so fond of. However if the algorithim/invention is so obvious that it can be guessed by observing a black box then I would argue the inventor has not "worked" hard enough to earn a state sponsered monopoly on the idea.
Dissasembly is of course a white box that allows you to copy the algorithim without necassarily understanding it. This may or may not come under the perview of copyright or trade secrets but I will leave that argument to someone with a better understanding of law.
"Stop posting grossly incorrect statements about a field you know nothing about." - Have you checked your arse for bite marks?
And did you exchange a walk on part in the war for a lead role in a cage? - Pink Floyd.
Goetz argument isn't weakened by using the waterfall model. He's just comparing phases of the waterfall model traditional manufacturing so that's hardly an argument at all.
His argument seems to be that since you can implement any algorithm in hardware just as well as in software, both ways are equal and thus patentable (given the current patent laws).
His mistake is that you can not and should not ever be able to patent algorithms (since it's math), only a specific physical machine that "executes" the algorithm.
No one has (yet) claimed a numerical method like Runge-Kutta should be patentable. However, if you find a novel way of implementing Runge-Kutta using sticks and rocks, you can patent that particular physical machine.
(Ok, some crazy patent lawyer or politician has probably claimed algos should be patentable but no "real" people with braincells)
Something very big just flew over your head.
.
There is no inherent right for anyone to restrict others copying / doing with whatever they see and obtain. Patents are a trade-off, a contract in society, but no right.
The only reason we have patent laws, was because people thought it would promote science. Now we see it is only to promote big business to hinder fair competition, or for small companies to hurt the big players through litigation. Nothing useful is produced in a patent, as the knowledge in a patent is legally dangerous knowledge to everybody. Thus it is not being useful for society. Patent-laws should therefore be revised, so it is again in alignment with the original purpose.
Artificial monopoly means "artificial". You can disregard nature only so long. When we have devices that can copy objects. Will you still restrict copying, when it's about physical matter rather than just information?
Rather than seeing the property of information being cheaply clonable, we should be mature about it, and see how such a useful property about software and information technology can further society - both technologically and spiritually (they go hand in hand).
The world is larger than just your own company..
http://www.debunkingskeptics.com/
I'm not denying there are many idiotic patents out there, but there are also many valuable, useful and innovative patents that deserve protection.
Software patents are a great idea, but the execution is so completely flawed that I'm convinced we'd be better off without them. The cure is worse than the ill.
Let's take a very normal hypothetical. You produce a piece of software with a genuinely innovative non-obvious algorithm in it, absolutely patentable by the rules, and you get a patent on it. IBM shamelessly steals the idea and puts it in their software. Can you sue? The thing is, you've undoubtedly violated at least one (and probably more) IBM patents in your software. Unless you have a licensing agreement with IBM, you're going to have trouble.
Part of the problem is that virtually every idea a software engineer can come up with is either patented or patentable. When the bar is that low, the system is worse than worthless.
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The problem I see with this is to define who, exactly, is getting plundered here and who is getting exploited.
For myself and based upon my lifetime of experience, I have known many individuals who have filed patents and sought patent protection on a great many things. Heck, I've even worked for companies who have filed patents on work that was done while I was an employee (nothing personal, but some co-workers).
In not one case, not even these companies I worked for, was patent protection anything other than something purely defensive to keep some asshole from suing their behind and seeking damages for patent infringement. They ***NEVER*** sought damages or frankly even earned a single dollar from patent royalties, both individuals and corporate entities that I directly worked for and was involved with the patenting process.
If anything, I saw how a prior patent kept a patent troll away by using a previous patent as establishing prior art. That was a good thing.... I guess.
Far, far too often patent attorneys are simply a part of a huge scam that seeks to extract money from otherwise hard working engineers and designers with the faint dream that somehow they might get rich off of their "invention". Compared to the amount of money that gets dumped into the USPTO and their farm of scammers associated with them to patent all of these crazy ideas, the amount actually paid in the form of invention royalties is relatively minor.
In terms of an overall economic impact, abolishing patents would only cause a few thousand lawyers to suddenly be unemployed and have to obtain meaningful work elsewhere in society. That seems like an overall positive thing for me as well, as we could use some more people who actually make things rather than suck up on the labor of others. Is seeking a reduction in the number of lawyers in America something to be considered socialist? If so, I guess that I am one.
That stretches the imagination quite a bit to say somebody wanting smaller government and fewer taxes is a socialist.
There are also many valuable, useful and innovative ideas that deserve compensation.
Patents are a terrible way to compensate inventors. "Protection" in this context is merely another word for "monopoly". I wish to compensate inventors in some other way that does not involve a monopoly grant, with all the problems that has caused. There's a big difference between not wanting to compensate inventors at all, and not wanting to compensate inventors with patent protections.
You say "socialist" as if that was a bad thing. You, on the other hand, would seem to be a monopolist, or at least an apologist for them.
Abolishing patents is not necessarily socialist, just as any other anti-trust measure is not. Using the public highway system does not make us socialist, though it certainly harmed the passenger railroad business. Nor does using the postal service make anyone socialist. The Founding Fathers felt that communication was too critically important to be trusted to the caprices of the market and ever present threat that someone might try to corner that market, or that a crash would drastically reduce or stop communication for a time. There was also a big debate over the US's banking system, that is, whether there should be a national bank.
Now we are debating health care. The market in its current form has certainly failed us. "Growing" the health care business can and has been done by looking the other way at unhealthy customs (soft drinks, fast food), suppressing knowledge (yes, Will Robinson, tobacco is dangerous), silently consenting to pollution, and favoring chronic care over cures (shame about high blood pressure, isn't it, having to take medication for the REST OF YOUR LIFE). And the way they bill things! They can't say how much anything will cost, up front, and there's no good reason for that. And "containing costs" has been done less by addressing all the above mentioned problems and more by blaming the victims, denying and canceling coverage, and attempting in every way to shift every possible cost to the supposedly insured. Medical debt is so screwy that it does not count for determining credit ratings!
Quit thinking that "market" is the answer to every question.
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
My basic argument against patents has always been that with 6 billion people on earth, it almost always benefits more people to allow the completely free exchange of ideas. As you mentioned, there are many things that "you'd never think of in a million years", but those same things might be completely obvious to a very smart person. The problem with patents is when a novel, useful innovation is completely obvious to at least *two* smart people; at that point the patent system is broken. Simply because one of those people filed a bunch of annoying paperwork first shouldn't prevent the other person from using that idea in any way that they desire, including sharing it with the entire world for free. The exclusivity of ideas has to actually have some basis in fact for it to be applied in law, and I don't think there are very many ideas that are truly unique to a single individual. Patents, if they exist, should be treated much more like copyrights. In strict legal theory, this is true, and a patent is only infringed if every claim of the patent is found to be infringed by another invention. Unfortunately, simply the threat of legal action is often enough to stifle innovation. It's much like if Disney had obtained a copyright on "cartoon animals" or "animated fairytales" and could happily sue any other company producing ideas that fit within those broad categories. Most patents are issued in similarly over-broad terms, and that is the heart of the problem. The other problem is that the business model of R&D, creation, profit is going the way of the music industry. With rapid prototyping, computer simulation, and cheaper CNC machines, the cost to develop new innovations is being decreased dramatically. Does it really make sense to issue a 25 year patent for a new widget that was drawn up in autocad in a week, stress tested with finite element analysis for another week, and then popped out of a rapid prototyper the next day and tested and finally sent to production on a CNC machine at the end of the month? If nothing else, the length of patents should at least reflect the realities of a free market with amazing new tools for rapidly creating new inventions. Often, people don't even realize they need something until they encounter a problem, and at that point it is pretty obvious how to solve it. Just because someone had the same problem within the last 25 years should not give them an exclusive right to the solution.
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