Slashdot Mirror
Is the Tide Turning On Patents?
Glyn Moody writes "The FSF has funded a new video, 'Patent Absurdity: how software patents broke the system,' freely available (of course) in Ogg Theora format (what else?). It comes at a time when a lot is happening in the world of patents. Recent work from leading academics has called into question their basis: 'The work in this paper, and that of many others, suggests that this traditionally-struck "devil's bargain" may not be beneficial.' We recently discussed how a judge struck down Myriad Genetics's patents on two genes because they involved a law of Nature, and were thus 'improperly granted.' Meanwhile, the imminent Supreme Court ruling In re Bilski is widely expected to have negative knock-on effects for business method and software patents. Is the tide beginning to turn?"
My attorney encouraged me to focus not on the software aspects, but how the software interacted with the surrounding system (sensors, hardware, users, etc). It's been suspected for a while now that the vise was going to tighten up against patents on algorithms.
And good, IMHO.
"This administration is so incompetent that they cover their tracks with bigger tracks." - Seth Meyers
I see a lot of parallels between Bilski and Eldred v. Ashcroft. They are both IP cases where the Court was asked to step in and do Congress's job for it. In Eldred they refused to issue any opinion whatsoever as to what would constitute an unreasonable extension of copyright terms. I see no Constitutional basis for them to hand down any other opinion in Bilski. IMHO the majority will refuse to state anything definitive on the issue, and mumble something about it being Congress's prerogative to interpret the "progress of science and the useful arts" clause in any way they see fit.
At that point lobbyists will descend on Congress with checkbooks in hand, and we'll all end up worse off than we were before the case was ever brought.
I have a patent on turning tides
Only if the video involves cats wearing things....or making awkward faces.
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If the supreme court strikes down software patents with their Bilski ruling, they shall become more powerful than we can possibly imagine!
Right??
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Yes, but barely, and could easily return to the No side with big money backing it.
That being said, whether it's next week or next year or 20 years from now, software patents will be be pointless. They will be ignored by everyone and their dog because countries like China and Russia completely ignore them and to compete with them, we will do the same thing.
Open source is the future, believe it or not.
I call it 'The Aristocrats'
I'm very optimistic about Bilski. Not because I predict a big win, but because I think the worst of the reasonably likely scenarios amounts only to no change. A somewhat win is likely, and that would be great because it would leave the door open for us to make our arguments again in a future case. This is how the SC handled patentable subject matter in the 70s, they did a trilogy of cases: Benson, Flook, Diehr. And that last one isn't as bad as the USPTO and the CAFC would have you think.
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Cited as evidence of a sea change in patent law: the FSF makes a Youtube video. Some academics wrote some papers.
This puts patent law reform at about the same level of public interest as this video on pouring shampoo out of a bottle.
I'll wait for in re Bilski, thanks.
The question is, if you were starting a business that provides a software solution, would you want to be able to protect your solution from the competition?
Patents protect small businesses and innovation from competition, including big companies that will do anything in their power to stomp little companies with disruptive technologies. Open source is great, no doubt about it. But if you invent something, even if it is software, it deserves protection. Patents are part of capitalism, so no, there's no tide turning.
It's still a rumor that hasn't been confirmed by Google.
The US Supreme Court has never upheld a software or business method patent. All they said in Diehr is that things that are patentable can be managed/controlled by a person or a robot/computer. The CAFC and the USPTO ran with this and approved all kinds of programs for such a robot/computer, but they're not the authority here. The Supreme Court is now taking over again for the first time in 30 years, and all they have to do in order to abolish software patents is to clarify and repeat their previous rulings.
The Supremes have always said that math isn't patentable, it's a fundamental truth that can't be "invented", and they've said that putting instructions, including math onto a computer is an obvious step.
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That is the the root of the issue at hand. From a reductionist standpoint, you could make that argument about anything. An inked cartoon character is just an ordered and structured collection of pigments. This construct can be represented by a polar graph of molecules and their locations. This can be made into an equation, which is just a mathematical construct, which is just an abstract arbitrary construct of mankind, which you cannot patent.
That is the trouble with patents, delineating intellectual property from reductionist components. It can be argued both ways.
'We are trying to prove ourselves wrong as quickly as possible, because only in that way can we find progress.' RPF
I would think that our politicians may not wish to be seen as business friendly right now.
All five major TV news networks (CNN, CBS, ABC, NBC, and Fox) are owned by a movie studio in the MPAA. People who believe the TV news (and there are a lot of them) will believe a story that spins any consideration of narrowing copyrights or patents against bedroom authors and inventors.
Fed-Soc.org - Patents: Legitimate Rights or Grubstakes that Obstruct Progress? - Winter 2000
As I said before The 2000-2010 "Intellectual Property" boom is about to go the way of the "Subprime" Mortgage, Dot-Com vapor startup, Junk bond and Dutch Tulip futures. The Patent Troll Business Model is inherently flawed, and just like the aforementioned others, add nothing to a nations REAL economy.
I'm a bit troubled by Slashdot's blanket reaction to software patents.
In the line of work I am in (broadly: statistical analytics), almost all innovation comes in the form of creating improved methods that are implemented in software. It takes a large amount of resources to come up with these improved methods (they are generally far from obvious), and they can easily be transferred across the industry. Most companies in my industry would refuse to pay for innovation if they knew people could join, learn every recent innovation in two months, and then leave to the highest competitor bidder, effectively destroying any competitive advantage. Non-compete agreements are legally useless in my state, and NDAs are tenuous and practically hard to enforce. Patents (or stealing IP) are really the primary methods companies in my industry survive.
tldr: software patents can and do vastly encourage innovation in several competitive and useful industries.
Is the formula to calculate the ratio of a circle's circumference to its diameter obvious? Neither is E=MC2 obvious, but no algorithm can be patented. Why should be an algorithm for video compression be patentable?
Only because you implement it in software and you run it on a general purpose computer, you argue it should be patentable. So you can implement the calculation of PI and E=MC2 in software and run it on a general purpose computer.
Software are mathematical algorithms, nothing more. It's just that you write the software in a so called "language" and you have multiple languages in which you can express the algorithm. But in the end is all goes down to the work of Turing and his Turing machines.
http://www.mueller-public.de - My site http://www.anr-institute.com/ - Advanced Natural Research Institute
I disagree on your economic analysis with software patents. Patents on software are a type of "broken windows fallacy" argument, and as such, are a hindrance to the economy, not any sort of positive asset.
This is *precisely* the time we should be abandoning outdated (**AA type numbers and agenda, the entertainment distribution "industry") /harmful(software and living things patenting) /useless(casino gambling banks and created out of thin air financial "products") /parasitic(governmental make-work mc jobs) "businesses".
Yes, there would be an adjustment period if we eliminated the bulk of those "jobs" up above, but after a short time, you would find people would be concentrating on real wealth production work, which in turn contributes to real wealth creation, an economy that doesn't need sham official figures to try and sugar coat reality, or one that relies on ..shoot..bingo cards as somehow all that valuable. This "IP" stuff is all well and good in some extreme moderation levels, but you can't run a huge nation the size of the US on services, patenting everything possible, every little tiny nuance of anything, even abstract concepts, and then high stakes financial gambling. The rest of the planet is starting to route around those bottlenecks now, that is why we are having a financial crisis, because we have been doing things "that way". So it is "that way" that needs to change, not just do more of it.
The abstract process to produce alcohol from fermented grain is in fact patentable. The specific implementation is protected by copyright. Chemical engineering is full of both patents and copyrights. There is nothing special about algorithm patents in this regard. You are not copyrighting the algorithm, just a specific reduction to practice. All types of patents are like this, abstract designs being patentable and reductions to practice having copyright protections.
Chemical process patents are pretty much identical to algorithm patents except it is molecules instead of bits. If you develop a unique process (the algorithm) then that is patentable in the abstract and always has been. Industrial chemistry is full of (often formerly) patented processes designs. The implementation of a particular process design is copyrighted. Both pieces, the design of the process and the design of the implementation, are independently valuable and protected.
It is well known that small businesses are innovators. Software patents are necessary to allow small businesses to compete with the large corporations which might otherwise copy, repackage, and sell the innovations of small businesses. There are definitely problems in the patent system, it is all too frequently abused. The negative attitude here on slashdot is, I'm afraid, a result of a successful campaign by the Free Software Foundation. I love open source software, both as a user and as a contributor, and it is unfortunate that patents do negatively affect, in many ways, the work of the free software movement. That does not, however, make patents evil, they are a necessity for the continued growth of technology and of a capitalistic economy.
In regard, again, to free software, it does seem more and more like the comparison of communism versus capitalism. Surely, there is some innovation in free software, but much of that originates from commercial entities looking to upsell other products. It is reminiscent of how the only innovation in (classic) communist countries originated from a national agenda, such as the Russian space program. However, even in the commercially supported open source software realm, many of the "good parts" are often kept under a lock and key, such as with Zimbra or SugarCRM. My point is, that without a capitalistic agenda, innovation does not happen. Innovation does not happen without a strong patent system, as inventors are motivated by money. It is not that companies and people won't invent without money, but that money stimulates and motivates in a way that pure interest, desire, and passion do not -- keeping in mind that the financial stimulation is in addition to, not in lieu of passion-based innovations!
The point? Do you work for free? What if you built a better mousetrap and began marketing it, but before you had the time to take it off the ground, a large national manufacturer began selling copies of your design? This wouldn't be protected under copyright, but would be covered under patents. This same scenario can happen with software too and small independent developers need protection, or they'll stop innovating completely, sell their businesses, and get themselves hired by large firms. Without competition, the large firms will stop innovating as well, and we'll all just twiddle our thumbs as we wait for the rest of the world to eclipse our rotting corpse of an economy.
You can touch a physical process or a machine. You can't touch some wave functions that are written on a piece of paper.
A patent was always about something you can show and touch, but software is math, which is just some algorithms written somewhere. Only because you can write the algorithms on a computer and make a computer calculate it doesn't mean that the computer will become a device that you can patent.
In the same way, if you write an algorithm on a piece of paper and make a human calculate it in his head doesn't mean that the human is a new device which is patentable.
To make my point clear on your example. If you build a machine, you can patent it. But if you write a formulae which describes the machine as a series of complex particle wave functions on a piece of paper you can't patent it. Because I can calculate the wave functions in my head, by a calculator or with a computer. What are you claiming in your patent, all current and future ways of calculating your wave functions?
That is basically what software patents are. They claiming all current and in the future possible ways of implementing an algorithm.
The line between math, algorithms, software and patentable things are pretty clear. It's only not clear if you try to define software as not been math (which is certainly is) to protect your "intellectual property".
http://www.mueller-public.de - My site http://www.anr-institute.com/ - Advanced Natural Research Institute