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?"
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.
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.
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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as it has been shown before, when it comes to software it's better to innovate than waste time on patents. Unfortunately a lot of people think it's a great idea to get something patented and don't even consider that hundreds of other people may have done the same thing before.
I work in an industry where I hear the phrase "I'm applying for a patent on my product" all day long. It doesn't mean shit, and you can get sued for claiming a patent on a product that doesn't get approved. You're applying for a patent for x? guess what, so are the other 25 people for doing the same thing. This goes double or triple for anything involving software in any form.
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
Yeah, tell me that patents don't matter when *you're* being told by potential investors that, gosh, you're a software company with an innovative product but you only have an app out for *one* patent? What are you thinking?
Regardless of that particular lawyer's minority position, potential investors and even state and federal grant boards look strongly to whether you're taking steps to protect your IP. We have product *and* are patent pending. The product was developed privately before the patent was applied for. Most software companies launch on sweat equity. Early on, cash is for hardware, lawyers, travel, things of that nature.
As for this "use the money to innovate instead" argument? Filing for a US patent costs about $10k, including attorney fees. An entry-level programmer costs you perhaps $65k after benefits -- we're talking entry level. So that's two months worth of salary + benefits. How much innovation do you think an entry level programmer is going to do in two months?
Furthermore, all of the costs aren't upfront. You may only spend $6k or so up front, but more when you need to actually defend your patent. So that gets pushed down the road, which in a startup, is a *very good thing*. So off the bat, it's one month of a starting programmer's salary you're talking about.
This is just the way business works. You either play the game or you get out of the pool. Many people here don't like patents because of their stifling effect on free software, and rightly so. But your anger needs to be directed at those who defend or seek to strengthen our current patent system rather than those who want it to be more reasonable but don't have a voice in the matter.
Here's an issue that most people here probably aren't aware of. The patent system is skewed toward helping the Big Boys. Startups aren't your problem. Startups have less money, yet they have to pay more for patents because they don't have a big team of lawyers lying around. Startups often aren't familiar with all of the risks and intricacies of the patent process and may screw themselves over by talking in detail about what they're doing too soon or things like that. Startups *definitely* can't afford to patent troll, to file a bunch of random patents and see what sticks. Startups may not be able to afford to extend their coverage to new markets or cover their tech as well. So the whole system is biased in favor of big companies.
What would I like to see in patent reform?
* Shorter terms for software patents. The term on a patent of a given type should be proportional to the typical length of the product cycle, such that the term is, let's say, however long it generally takes for the third generation of said product to hit the shelves. So if you say the typical software innovation cycle is 2-3 years, then perhaps 5 years. From time of granting, not of filing.
* Greater leniency for filing errors, but stricter standards for what's innovative
* Faster processing times
* A *higher* filing fee. This will make the percentage-difference in cost between patents from the big boys and startups smaller, as well as helping fund more people to review them faster and better.
And you know... a lot of the business world would probably consider me a radical for this, but I'd like to see there be funding -- perhaps from the patent fees themselves -- for a governmental legal defense organization for nonprofits and individuals. That wouldn't mean that nonprofits and individuals would get a "violate patents risk-free" card. But it'd help stop meritless bullying from companies who know that their targets are too weak to fight back.
"This administration is so incompetent that they cover their tracks with bigger tracks." - Seth Meyers
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.