Patent Office Admits Truth — Things Are a Disaster

An anonymous reader writes "For years the US Patent and Trademark Office has published data to show how well it and the patent system were running. Under new leadership, the USPTO has begun to publish a dashboard of information, including a new look at questions like how long does it really take to get a final answer on whether you will receive a patent or not? The pat answer was, on the average, about 3 years. But with the new figures, it's obvious that the real number, when you don't play games with how you define a patent application, is six years. The backlog of patents is almost 730K. And the Commerce Department under the Obama administration wants the average down to 20 months. How does this happen? Only if everyone closes their eyes and pretends. It's time to take drastic action, like ending software patents. As it is, by the time companies get a software patent, there's little value to them because, after six years, the industry has already moved on."

Comments

Big Software Corps

[zrobotics]

That six year backlog doesn't seem to apply if you have enough money to grease the proper hands so that your patent magically seems to get processed faster.

Re:Big Software Corps

[DoofusOfDeath]

That six year backlog doesn't seem to apply if you have enough money to grease the proper hands so that your patent magically seems to get processed faster.

I haven't heard any allegations of this before. What leads you to think this problem exists at the USPTO?

Re:Big Software Corps

[TheRaven64]

That seems unlikely. If anything, you'd grease palms to ensure that your application was delayed. While a patent application is pending, you get most of the benefits of a patent, but none of the costs.

Re:Big Software Corps

[ProfBooty]

The only applications which will skip forwards are accellerated cases and continuations/divisonals. There has been a big push within the office to have each examiner work on their OLDEST cases to reduce pendency figures, in fact examiner's ratings depend on it.

Re:Big Software Corps

[Dachannien]

While there was a case a few years back where someone was dipping into customer deposit accounts, I've never heard any reports of examiners being on-the-take to process an application in a certain way. If you've heard something different, feel free to enlighten us.

There is something called a "petition to make special", which in some cases requires a fee, but this is specifically authorized by regulations.

In fact, there are various mechanisms (performance metrics and docketing, both for examiners and their supervisors) which discourage or prevent working on applications out of turn. Examiners do have some flexibility for managing their dockets, but the general push is to work on the earliest-filed applications first.

Re:Big Software Corps

[Anonymous Coward]

On what planet and dimension DO YOU LIVE???

Re:Big Software Corps

[Anonymous Coward]

That's true with everything.

Re:Big Software Corps

[commodore64_love]

Sounds like they'll be hiring a lot of engineers soon, to process that backlog of patents. Time to send your resume, if you don't mind living in the VERY expensive DC area.

Re:Big Software Corps

[Throtex]

This is sickening. No, not your allegations. The fact that people think like you do is sickening. You know absolutely nothing at all about the patent system, and yet you attribute this mobster mentality to it. You are simply the lowest of the low. I won't even post this anonymously.

There are mechanisms to expedite patent prosecution which are beyond your understanding, because you will never bother to research them. These are given, for example, in cases of advanced age of one of the inventors (the only time I personally, as a patent attorney, have used this mechanism). There is no large scale conspiracy, and applications I've filed for both small outfits and large megacorporations receive equal treatment. I wouldn't even know where to begin to "grease the proper hands" without having the ethics hawks descend on me with great vengeance and furious anger within the hour.

Try, please please try, to understand the machinations of government before you accuse every nook and cranny of it of corruption. The patent system is made up of scientists and engineers, and the attorneys all have these backgrounds as well.

With regard to software specifically, this movement to strip an entire category of inventions of protection lacks nuance. What I find most interesting is that its biggest proponents are people within the software industry itself, but usually not the real innovators. Are you saying software simply can't be inventive? That you can't possibly think of something in software that anyone else couldn't have thought of, even given the exact same problem set? Because boy oh boy, if that's true, we're really overpaying software "engineers" then, aren't we?

The reality is that we do grant too many software patents, but it's not a flaw with granting patents on software per se. The flaw is with a lack of a rigorous model for determining what is and isn't obvious; the difficulty of truly understanding, without hindsight bias, what the level of ordinary skill in the art is. To me, the level of ordinary skill in the art of software engineering is a lot higher than many people give it credit for, and this alone should be sufficient to render a number of claims obvious.

Stop trying to completely break what you don't understand, because despite the problems, there are a number of true innovators in software. And I won't say that they deserve patent protection, because that's not the point. But they should be given patent protection because we need to encourage that level of innovation, and you can tell where this innovation is most needed from those areas where huge gaps exist in FOSS offerings.

If you really want to change things, to truly help fix the system, UNDERSTAND IT. Really understand it. Slashdot won't help with that.

Re:Big Software Corps

[Swanktastic]

This was your big opportunity to throw FIFO out there and you blew it.

Re:Big Software Corps

[Machtyn]

The problem with your argument is that in many cases the government has given us a multitude of opportunity to be suspicious of it. There has always been a distrust of government in the US.

So, extending this distrust to all government agencies is a natural thing to do, whether it is true or not. Try bribing a policeman - a large percentage of the time, you'll end up in jail. Try bribing a politician... oh, wait.

The patent system is made up of scientists and engineers, and the attorneys all have these backgrounds as well.

If that is the case, then why do they mess some patents up by not seeing prior art? Yes, mistakes happen and I suppose there is a process to work it all out. But while that process is rolling, the patent holder is out there drying up the coffers in attorneys fees of all potentially infringing users.

Re:Big Software Corps

[Grond]

That six year backlog doesn't seem to apply if you have enough money to grease the proper hands so that your patent magically seems to get processed faster.

What an absurd and baseless accusation. The patent process is an open book. You can see virtually every communication between examiners and applicants on Public PAIR. The USPTO is an extremely transparent organization. If there were any evidence for such corruption, there are no end of legal academics who would pounce on the opportunity to expose it through statistical analysis or even anecdotal evidence. As an attorney, patent agent, and academic researcher I have never encountered any evidence of such corruption.

Re:Big Software Corps

[cpt kangarooski]

Are you saying software simply can't be inventive?

Not at all; software can be marvelously non-obvious, novel, inventive, useful, etc.

The problem isn't software per se, it is the software industry, and frankly, it's not really a problem, either.

Patents are intended to promote the progress of the useful arts. This is accomplished by encouraging inventors to invent, disclose, and bring to market, inventions which are useful, novel, and non-obvious, when they would otherwise not have done so, for the least cost in terms of restrictions upon the public. However, we know from history that some inventive activity will occur even in the absence of patents as an enticement. That, then, is our baseline. Whether or not any particular patent system is efficacious can only be measured by whether or not it encourages more invention, disclosure, and bringing to market than would occur if it did not exist (and remembering to take into account that in the absence of a patent, it needn't be the same person to do all three of those things), where the benefit of those things is not outweighed by the cost to society of burdensome monopolies. Likewise, alternative patent systems and reforms to the law may be compared by weighing them against each other in the same manner: the best is the one that produces the most public benefit for the least public cost.

This more or less works fine for many inventive industries. But software is an odd duck.

It seems very likely that the amount of invention, disclosure, and bringing to market that would happen in the field of software in the absence of patents is just as great, or perhaps even greater, than under the current patent system. That is to say, granting patents in this field may actually be harming the progress of this useful art. That's directly contrary to the purpose of patents. After all, there are great incentives to, and low barriers for, the invention of new software, and for bringing them to market. And often the interesting part of software is easy for those skilled in the art to discern without the disclosure requirement. The infamous One-Click patent tells you everything you need to know in the name, for example. Everything beyond that core idea are just implementation details that any PHOSITA can manage.

So why are people -- especially those in the industry -- opposed to software patents? It's not because they don't think software is inventive. It's because they think that the patents are a drag on the industry. That they're pointless at best, and actively harmful at worse. And comparing us to our foreign rivals who lack these patents seems to confirm this.

It isn't inevitable that this has to be so; perhaps someday in the future, natural incentives to inventors in the software field may decrease, and the added artificial incentive of patents may be very useful in keeping things going. But until that happens, we really ought to abolish patents in this field, since they are apparently not able to do their job.

Re:Big Software Corps

[Stiletto]

I'm not going to criticize your knowledge of the patent system and process, because obviously, as a practitioner, you are obviously more knowledgeable than I.

What I will criticize is your bias as a legal professional.

What I find most interesting is that its biggest proponents [of getting rid of software patents] are people within the software industry itself

What I find interesting is that the biggest proponents of the current patent system are not industry professionals, but patent attorneys. I consider that damning evidence of who truly benefits from the patent process.

I think you're missing the perspective of industry practitioners, but not the ones you tend to meet in your career--the relatively small group who were told by their company to apply for patents on anything and everything they can think of. The vast majority (I claim) of software developers are not interested in "protecting" their toolbox of clever little three-line inventions, and just want to get on with be inventive without worrying about walking through a mine field.

The flaw is with a lack of a rigorous model for determining what is and isn't obvious; the difficulty of truly understanding, without hindsight bias, what the level of ordinary skill in the art is.

I definitely agree with this assessment, however you left out "conducting an honest and thorough search for prior art". Perhaps you can educate me about how rigorously companies search for prior art that, if discovered, would ruin their chances of profiting from their patent submission. Or how rigorously attorneys conduct these searches, that if successful, would cut short the process (along with their hourly fees). Or how thoroughly and carefully the patent office conducts these searches, with 3-6 year backlogs and pressure to cut those backlogs drastically.

I submit that we have the mess we do because there is no force anywhere along the process that would motivate any of the involved parties to deny a patent.

Re:Big Software Corps

[SanityInAnarchy]

The patent system is made up of scientists and engineers,

I have seen patents which would call that into serious doubt.

What I find most interesting is that its biggest proponents are people within the software industry itself, but usually not the real innovators.

And how do you judge whether or not they're "real innovators"? Let me guess, by how many patents they've filed?

Are you saying software simply can't be inventive?

Hardly. In fact, the problem seems to be largely that patents are holding back inventions. From the patents which currently exist, there is simply no way for me to avoid infringing on someone's patent and also write any software at all, without an army of patent lawyers to dig through all those patents and tell me what not to write -- a process which would significantly slow innovation, if indeed I could write anything new at all.

As it is, the way large corporations seem to handle this is to file their own patents as fast as they can, so that when (not if) they infringe on someone, there's hopefully enough mutual infringement that they can work out a licensing arrangement. It is, in other words, a sort of software MAD.

What I find truly disgusting is that software patents, unlike copyrights, can be vague enough that I could legitimately invent something, in a cleanroom, without being aware of the patent I'm infringing, and be hit with a patent lawsuit for some mathematical truth I end up using. That's right, it's not just invention, but underlying principles of the universe which are protected here.

And that's a worst-case scenario -- but what if I want to support something for the purposes of interoperability? Consider H.264, and tell me HTML5 video is not innovative. Tell me Firefox is not innovative. But because of the patent issues surrounding H.264, Firefox refuses to support it, and certainly, if they were to implement it themselves -- even if they wrote their own decoder from scratch, without looking at any of the code for the official H.264 decoders -- they'd still be in violation. It's not terribly hard to find similar examples where, only because there weren't sufficient patents (or because companies chose not to enforce them), we have interoperability -- would OpenOffice be where it is today if the Microsoft Office formats were patented?

Stop for a moment and consider what the world would look like if web standards were patented. If HTML, CSS, JavaScript, and so on could only be implemented by those willing to pay a licensing fee to a central authority. If any third-party re-implementation of TCP/IP would likely result in a lawsuit. Would you really want to live in such a world?

Well, you're a patent attorney, so don't answer that. But why should any sane person who is not a patent attorney want to see HTML patented?

So the inventors can be rewarded... really? Do you really think Tim Berners-Lee has received no rewards for his efforts?

That you can't possibly think of something in software that anyone else couldn't have thought of, even given the exact same problem set?

That's sometimes a good idea, but not always. Because Adobe either doesn't have patents on PDF, or doesn't use them, people can send me documents and expect me to be able to read them with any of a half-dozen PDF readers I have, and I can expect to be able to work with them -- chop them up, rearrange them, print them, and so on. Certainly, there are other ways of solving the same problem, such as PostScript, but that doesn't decrease the problem -- if some people can read and write PostScript, and others can read and write PDF, we can't communicate, no matter how "innovative" one of them might be.

Also: Why would you want to force people to reinvent the wheel? One of the largest problems in software today is NIH syndrome, and you want to increase that? Seriously?

The reality is that we d

Re:Big Software Corps

[Pfhreakaz0id]

oh please. I was a police reporter in a 100K city for several years and got to know cops. I once sat around in the station and heard these guys trading stories about getting sexual favors from females to get out of speeding tickets (they didn't know I was in the next room, obviously). I guarantee you, policemen are bribed every day around the country with no repercussions.

Re:Big Software Corps

[couchslug]

So the system is essentially too awkward to fix, but we should preserve it for a (few) innovators instead of nuking it for the greater good?

Smart people will still make money from their ability to write software, and software freedom benefits all, except those no longer making a profit from patents.

Re:Big Software Corps

[GNUALMAFUERTE]

Dude, you are a patent attorney. That is as low as it goes.

And, regarding parent's comment, let me put it this way: Corruption is everywhere. Your job description is corrupt by definition. There is a simple service that should be granted to any citizen, but we put a shitload of complex bureaucracy in the middle so that you have to hire a guy that does nothing but understand that stupid system (a fucking lawyer). The more you spend in lawyers, the better they'll play the system to get what you want. No money? Nothing for you. That is corrupt by definition.

The whole system is made of official bureaucrats and freelance bureaucrats. You all study on the same universities, you play golf in the same fields, and you make money from the same corpse. There is no need for any conspiracy, your shared interests are enough. So, it doesn't matter if you have to 'bribe' official bureaucrats, or if you have to 'hire' freelance bureaucrats. You are eventually paying to the same corrupt system to get something that is already yours since you are paying for the whole circus with your taxes.

You provide nothing valuable to society. You don't produce, you don't create, you don't provide any valuable service. You abuse the system, and help sustain the system so that others may abuse it too in the future. You sir, are a parasite.

Re:Big Software Corps

[Throtex]

The problem with your argument is that in many cases the government has given us a multitude of opportunity to be suspicious of it. There has always been a distrust of government in the US.

So, extending this distrust to all government agencies is a natural thing to do, whether it is true or not. Try bribing a policeman - a large percentage of the time, you'll end up in jail. Try bribing a politician... oh, wait.

I appreciate a healthy distrust in government. I in no way advocate trust in government, or in anyone or anything in particular. But there's a big difference between being skeptical and inflammatory without any reasonable basis. It's an issue I take to heart in the legal profession, when I see baseless accusations of fraud (or inequitable conduct in patent law, fortunately not first-hand) made without consideration of the damage it does.

And if the assumption is that everything the government does is tainted with fraud, then there's no hope you could ever do anything to fix it. Nor will the government ever be able to prove clean hands.

If that is the case, then why do they mess some patents up by not seeing prior art? Yes, mistakes happen and I suppose there is a process to work it all out. But while that process is rolling, the patent holder is out there drying up the coffers in attorneys fees of all potentially infringing users.

Well, first, there's no obligation to search prior art by anyone other than the examiner. Some very diligent clients do ask for a search, and the patents that emerge from that practice are usually downright bulletproof. But it's expensive, and with no other obligation not many people are willing to pony up. A start-up would rarely want to spend several extra thousand dollars to do a search.

Second, as a patent practitioner, it should be obvious that not being in the trenches day-to-day in the precise technical area of the inventors I work with (and the technology space is *vast*), I personally won't know off-hand if there's something else out there. Generally, the inventors would have the best idea of what's going on with the competition. And while there's no obligation to search, there is an ongoing obligation to the duty of disclosure, which means if anyone involved with prosecution of the patent (inventors, in-house counsel, myself, etc.) is aware of something relevant, it must be cited.

Third, there is a resolution process, and it's called reexamination. You don't have to litigate a patent to invalidate it, you can pay a fair fee, file your paperwork, and tell the PTO what they screwed up. This procedure has been available forever, and is vastly underused.

The patent office is working diligently on the quality problem, with pilot programs to obtain input from the general public, experts, and so on. Measures have been proposed to require searches. It's all on the table.

We all know what is and isn't broken. And even as a patent practitioner: I hear you guys and feel your pain. But, as with everything, there's a right and wrong way to go about fixing problems, and so it's frustrating to me to see the problem dismissed as *fraud* with a +5 vote on what should be a website for technical thinkers and problem solvers.

Re:Big Software Corps

[Throtex]

The infamous One-Click patent tells you everything you need to know in the name, for example. Everything beyond that core idea are just implementation details that any PHOSITA can manage.

While I disagree that One-Click is a proper example, even if it were, your follow up only agrees with what I'm saying. You feel software patents are acting to our detriment because of examples like these where any PHOSITA ("person having ordinary skill in the art," for those of you just joining us) could come up with the details. That anyone faced with the problem of constructing a system to quickly place an order would have the solution just smack them upside the head.

If that really is the case, then the flaw is again not with software patents per se, but with the obviousness standard used to evaluate them. Maybe patent examiners in this area just don't know how to think like a PHOSITA.

I agree, however, that the purpose of a patent system is to foster innovation. If it should ever work against us, it should be eliminated. I said as much in my prior point, noting that it's not that innovators "deserve" patent protection, but simply that it's determined to be useful to grant them this protection. However, keep in mind that you're measuring the detriment of the current system, warts and all, rather than one that rewards only true innovation. For every evil villain company who files for a software patent on a completely obvious widget, there's a start up that can only secure funding for his clearly inventive software product if the investors have any confidence at all that the idea won't be stolen as soon as it goes to market. Don't throw the baby out with the bathwater.

Re:Big Software Corps

[ColdWetDog]

oh please. I was a police reporter in a 100K city for several years and got to know cops. I once sat around in the station and heard these guys trading stories about getting sexual favors from females to get out of speeding tickets (they didn't know I was in the next room, obviously). I guarantee you, policemen are bribed every day around the country with no repercussions.

Yeah, and I heard the same stories in my high school gym locker room. And they're probably just as accurate. Wishful thinking does not get you laid.

Re:Big Software Corps

[Pfhreakaz0id]

umm, ok, how about this? We had an officer who won a national "hero" award for jumping in a creek and saving a kids life (rightly so, it was raging with flood waters), who was later fired because he stopped a random woman, fell in love with her and began stalking her.

We had another two officers fired when they stopped a vehicle, found a bunch of pot in the trunk. Let the guy go and they sold the pot. They eventually got caught when the druggie in question got busted about a year later and gave them up in a plea deal.

I could go on and on. There are great, honest policeman. But for the most part, at least the cops I hung around, weren't too far removed personality wise, from "criminals". Also, so I don't sound so biased, I'll say this: The job wears on you. Being a cop sucks. You are put in danger, get paid crap and as one 20-year officer told me "everyone lies to you. Everyone."

In summary, if you think cops don't take bribes, steal, etc (and get away with it much of the time), you are hopelessly naive and frankly, know not of what you speak).

Re:Big Software Corps

[symbolic]

It's an issue I take to heart in the legal profession, when I see baseless accusations of fraud (or inequitable conduct in patent law, fortunately not first-hand) made without consideration of the damage it does.

I think a case could be made that the reason software patents are now an (unfortunately) accepted norm is due to one single liberal interpretation of a single case, followed by one opportunistic attorney who decided that the outcome of this case opened the door wide open for all software-related patents. Not only was there no effort to correct this by the government, it is my opinion that the effort to do so, at least in part, has been affected by the fact that the revenue being generated by the large swell in patent application fees is quite significant.

And now we have a mess- for everyone- the patent office, the software industry, and consumers. The patent office could easily fix this returning to the former rules - no software patents. Period.

Re:Big Software Corps

[NicerGuy]

Thank you for these good points!

Re:Big Software Corps

[Throtex]

I'm not sure where you get the idea that patent practitioners live in some cave of self-interest protectionism, but I'll readily acknowledge the flaws with seeking protection for what are likely obvious improvements to everything, and the lack of a good system to fully search the prior art (which goes hand-in-hand with the issue of defining the level of ordinary skill). These problems exist, but the solution isn't to do away with the whole system, not even for an area like software which is really not as unique in the grand scheme of things as software engineers would like to think. The patent system has very real, and necessary, incentives for the small innovative start up, for example. Or even the innovative megacorps.

We're doing ourselves a disservice by not tackling the issues at a nuanced level, as technologists. Fortunately, the game changers are doing just that, and working on ways to get all the prior art on the table during examination. This complaint is heard loud and clear.

Re:Big Software Corps

[devent]

The reality is that we do grant too many software patents, but it's not a flaw with granting patents on software per se.

Yes it is. As it's a general flaw to granting patents on math and on algorithms. Software is math and algorithms, it's as simple as that. The only difference is that software is calculated with a computer. Why we don't patent math? Answer me that. Because math are the fundamental principles that every invention needs, no inventions are possible if you patent an mathematical algorithm. It's like patent iron or copper. Why are we panting software? Because it runs on a computer, a general purpose device to calculate mathematical algorithms. Why we don't patent mathematical algorithms that are "run" on paper with a calculator? It's the same but the one thing gets patents, the paper and calculator thing gets no patents.

Re:Big Software Corps

[Throtex]

By your logic, a farmer doesn't produce, he's just a parasite living off his crops. I work in a profession that, when functioning correctly, fosters innovation. I have no qualms about it.

Re:Big Software Corps

[Teancum]

OK, instead of "greasing palms" how about a very nice campaign contribution where some fairy god-senator decides to lean on the USPTO in order to get something expedited. There are many "legal" ways to bribe government officials if you really care to make the effort.

Yes, there might be built-in expedition methods within the USPTO as well, but it doesn't hurt if there is some pressure from above as well. It can't be done too often, but for an occasional action out of the millions of patents being issued, I'm sure that at some point or another some political pressure of that nature helps. Besides, when appropriations time comes around I'm sure that same senator would be reminded of his push and be "encouraged" to be more sympathetic for funding requests coming from that agency.

Re:Big Software Corps

[Teancum]

I also knew more than my share of pregnant high school students, and that would imply that at least some of those stories were true to a certain extent... unless I don't understand biological processes very well. While wishful thinking doesn't get you laid, it is hard to conceive a baby as a teen with no money unless you are getting some. The boyfriends involved, of course, claimed that they were using "protection" and trying to avoid the situation too.

Re:Big Software Corps

[AudioEfex]

Here's the problem with software patents : they are given for stupid things.

You can get the most ridiculous patent - like "one click buy". Someone clicks a button on your website next to an item, and it's automatically charged and shipped to you. Somehow, something so simple as that idea can be patented? That's the most ludicris thing I have ever heard. Didn't I read not that long ago that some guy was suing everyone from eBay to Amazon because he thought he had a patent to the "online shopping cart"?

You are right - a lot of us are not patent experts. I know I'm not. But I do know enough about them to know how absolutely assanine many software patents are. An awful lot of software patents are the same as it would be if patenting "a movie in which a down-and-out female meets a man, they fall in love, a tragedy and/or misfortune befalls one of them, keeping them apart, and in the end one of their best friends does something which brings them back together". Katherine Heigel, Kate Hudson, and Jennifer Lopez would never work in Hollywood again, and they'd have to file a multi-billion dollar infringement suit against Julia Roberts.

They don't allow you to patent movies like that, because we have something called copyright. People should be able to copyright their software, and their specific ways of doing things in their code. That's adequate. Abstract concepts and universal ideas should not. Assuming it's not a parody, should I be able to go out make a serious movie called "Space Wars", about characters named Duke Skyhound, Princess Bea, and Man Bolo who are fighting the Evil Imperials while trying to find the surviving Zedi who were wiped from the Galaxy during a war who have powers like mind-control, super-agility, and the ability to wield a glowing sword called a "Lightpole"? No, but it's perfectly fine for me to make a movie about a war in outerspace - someone might want to warn the folks over at Battlestar if Lucas gets a patent on that, and likewise Lucas should be waiting any day after for the estate of Gene Roddenberry's infringement suit, and the estate of Roddenberry should expecting...well, you get the picture.

Copyright is sufficent for software. If your process is revolutionary enough, your code shouldn't be that easy to duplicate without violating a copyright. As consumers, and citizens, we'd all save a whole hell of a lot of money without software patents and all that goes with them. Any supposed good in them is rhetoric and scare tactics - the software industry wouldn't fall on it's knees overnight. It may change - just like the music industry is being forced to (although they are still kicking and screaming trying to apply their old ideals to this brand new world) - but the software industry, and it's advances/development, would end up just fine.

Re:Big Software Corps

[Z00L00K]

The question is also if the pay is enough to get good engineers or they only can get fresh engineers from education.

Re:Big Software Corps

[Chibi Merrow]

What I find most interesting is that its biggest proponents are people within the software industry itself, but usually not the real innovators.

Tim Berners Lee? John Carmack? DONALD FREAKING KNUTH? These people aren't innovators? REALLY?

Hell, if anything, software shouldn't be patentable because Knuth probably already published the damn algorithm 30 years ago!

Are you saying software simply can't be inventive? That you can't possibly think of something in software that anyone else couldn't have thought of, even given the exact same problem set?

No, what I'M saying is that math shouldn't be patentable. Anyone who says otherwise is probably a patent attorney or an MBA, not a Computer Scientist.

Stop trying to completely break what you don't understand, because despite the problems, there are a number of true innovators in software. And I won't say that they deserve patent protection, because that's not the point. But they should be given patent protection because we need to encourage that level of innovation, and you can tell where this innovation is most needed from those areas where huge gaps exist in FOSS offerings.

Stop expecting me to support a system that directly threatens my very livelihood. Carving up portions of a domain of math and saying that use of them without a license fee is illegal is disgusting. It's even gotten to the point now that MPEG-LA triumphantly claims that no one can create any video codec without infringing upon their patents. How is this encouraging and protecting innovation? It's actively preventing it!

Re:Big Software Corps

[0111 1110]

Are you saying software simply can't be inventive? That you can't possibly think of something in software that anyone else couldn't have thought of, even given the exact same problem set?

Software is just a series of instructions. So, no, it can't be "inventive". And even if I did think of something that no one had ever thought of before (although highly unlikely), I shouldn't be able to patent it. The patent system was not intended to protect original ideas. I did successfully patent the idea of doing cube roots on a computer though. And then proceeded to get a patent on square roots on the internet. This was after my infamous one click patent. The whole patent system is broken and, as a patent attorney, it sounds like you are part of the problem.

Re:Big Software Corps

[Anonymous Coward]

If that is the case, then why do they mess some patents up by not seeing prior art?

I'm not sure if you personally are guilty of this, but the hordes of readers here at Slashdot seem to mostly skim the summary of the patent, think "hey linux did that like five years ago, sorta" and then scream prior art, though it may be almost totally unrelated to the actual filing.

"td;dr" doesn't apply to any legal document.

Re:Big Software Corps

[Kidbro]

they should be given patent protection because we need to encourage that level of innovation

I ask these questions very seriously:
Do you really believe that a potential patent (and the potential stream of money said patent would supposedly generate) is actually a motivating factor for these innovators?
Do you really believe that it would be possible to - within a reasonable time frame - design and implement a mechanism for awarding these patents where the overhead of the process is so small that more innovations won't be lost because the innovators are distracted by irrelevant things (such as filing patent applications) rather than actually... innovating?
Most importantly, do you really believe that the downside of having these innovations patented (and thus restricted) are actually outweighed by the vast number of extra innovations that are generated by the supposedly oh, so much more motivated innovators?

I think your view of what drives these people is extremely disconnected from reality, that your dream that it is possible to implement a system that does more good than harm for actual innovation is nothing but delusion, and that the harm caused by restricted software technologies is huge compared to the few actual extra innovations that a patent system could possibly provoke.

In the meantime, those of us who work in the software industry live under the perpetual fear of being sued into ruin over nonsense. Or, as in the case of many software companies (my own employer included, fortunately) - stay the hell away from the USA.

Re:Big Software Corps

[Atlantis-Rising]

And what do you do for a living?

Re:Big Software Corps

[0111 1110]

I work in a profession that, when functioning correctly, fosters innovation. I have no qualms about it.

You are in it because it pays well. Just like every other lawyer. Don't pretend that you have principles. And it doesn't foster innovation. It stifles it. That's why so many of us are against patents. The system only protects large corporations from smaller companies without large patent portfolios to trade. I wonder if there has ever been a single inventor whose invention has been protected by getting a patent. Maybe there have been some cases, but nowadays it almost never happens. I would never bother to file for patent protection. If a large company wants to copy my product there is nothing that I can do about it. What am I going to do? Sue them? Hahahahaha! And what if the company is in China? No. Patents are really only useful to large corporations for defensive use, so that they can get away with infringing patents by threatening to sue the other company for their patent violations. They are also useful to patent trolls like, say, Rambus. But to an actual inventor? Useless.

Re:Big Software Corps

[Pinky's Brain]

There is no objective obviousness standard possible, you can't erase hindsight ... every fucking lawyer designed test comes down to prior art.

The only good objectiveness test is to take a jury of experts and let them vote on it, hindsight be damned.

Re:Big Software Corps

[Pinky's Brain]

Obviousness test of course ... blah.

Re:Big Software Corps

[RAMMS EIN]

``the flaw is again not with software patents per se, but with the obviousness standard used to evaluate them''

I can accept that. If the standard of obviousness is such that the bright minds in the industry can read the patent and go "Wow! Brilliant! I would never have come up with that!", then it would seem the patent system is serving its purpose of furthering innovation. On the other hand, perhaps that makes it a losing preposition to the patent holder: they paid for a patent on something that nobody else was going to come up with. On the gripping hand, lower the obviousness standard too much and you end up hurting progress by disallowing people to use methods that they invented, but someone else happens to hold a patent on.

I am not sure that the obviousness standard can be set at a level where it will be advantageous for innovators to seek patents, without causing more harm than it does good.

Re:Big Software Corps

[cpt kangarooski]

Well, setting aside the goal of disclosure, I think that if no software patents were granted, you'd see just as much, if not more, inventive activity and bringing to market. The natural incentives in this field are so great that there's no need for the artificial incentive of a patent, especially given that the negative effects of patents would probably harm the software field, no longer being outweighed by their positive effects.

Disclosure is desirable, but I suspect that in most cases, software is easy enough for a PHOSITA to inspect and reverse engineer that the benefits of disclosure by the inventor would be fairly minimal. (Especially if we were to make much-needed copyright reforms that mandated putting complete and well-documented source code and other supplementary information in the Library of Congress as part of a revitalized deposit requirement) The one-click patent wasn't obvious except in hindsight, IMO; I raised it because it is a good example of disclosure not being enough of a reason by itself to continue to have software patents.

So if you'd have invention, and bringing to market anyway, and disclosure largely takes care of itself (along with some copyright reforms), what benefits are we getting from software patents that we couldn't have otherwise? Likewise business method patents. I realize that this might reduce 'breathing room' for small inventors in the software field, but I think that the advantage of being first to market, combined with trade secrets, NDAs, etc. to protect against unscrupulous business partners, is probably adequate. In any event, I'm prepared to take a chance on it.

Re:Big Software Corps

[Anonymous Coward]

>this movement to strip an entire category of inventions of protection lacks nuance

Yeah, that's what the founding fathers fought for: Live Nuanced or Die!

Disclaimer: I referred 2 more designs to my company patent board yesterday.

Yet, I believe software patents are ill-advised, and the combination of copyright+patent for software would be better replaced by an altogether different category of protection. Problem is, I do not think this or any recent Congress could legislate this sanely, let alone in the best interest of the country.

Alternately, I would support a system that allows each patent application's claims to be shown to a B-average grad student. If the student produces a system that infringes by only seeing the claims, within say 3 months, it's marked obvious, and it's tossed.

Re:Big Software Corps

[IICV]

Are you saying software simply can't be inventive? That you can't possibly think of something in software that anyone else couldn't have thought of, even given the exact same problem set? Because boy oh boy, if that's true, we're really overpaying software "engineers" then, aren't we?

Nope, software cannot be inventive - we're overpaying those software engineers just as much as we're overpaying those mathematicians. Saying that you "invented" a piece of software is (if you accept the Church-Turing thesis) exactly like saying Poincaire invented his conjecture, or that Einstein invented relativity, or that some ancient (Hindu, I believe) mathematician invented the fact that that 0 + 1 = 1. Sure, the concepts used in software can be novel, but they are not invented - because all software is fundamentally mathematics, the concepts used in software already exist and we just discover them.

Re:Big Software Corps

[Wolfbone]

The standard of non-obviousness has never been particularly high (in all fields, not just software) and, for various reasons (desirability of examination objectivity; demand pressure; ...), is never likely to be. A low standard of inventive step isn't the only contributor to contraindications such as a high rate of independent (re-)invention anyway.

You've correctly identified the fundamental rationale for granting patents in the first place, and seem to have recognised that it is primarily a question of economics, but you've made some assertions / indicated some implicit assumptions which don't really stand up to economic scrutiny. Have you read e.g. Machlup or any of the more recent literature on patent system economics - and the wisdom of allowing software as patent eligible subject matter in particular? It's really not so clear that there is a baby in the bath. ;-)

Re:Big Software Corps

[jonbryce]

The argument against software patents isn't that software can't be inventive, or that most of the software patents that are granted shouldn't have been, even though that is probably true.

The reason I am against software patents is because it doesn't promote the progress of science and useful arts. People and companies are not more likely to write software because they can get a patent on it. Copyright gives them all the protection they need. If anything, they are less likely to do so because of the risk of patent trolls and more established competitors taking them to court.

Re:Big Software Corps

[Stiletto]

Self-interest is natural. It's totally understandable to want to protect one's profession. It makes total sense that by and large, the only vocal supporters of our patent system are attorneys and large firms that hold war chests of patents.

As a software professional, patents are detrimental to my livelihood. I oppose them pretty much across the board (including non-software patents). It's a self-interest-based position as much as it's a moral position. People should be allowed to innovate and invent without fear of walking through a mine field. You don't deserve exclusive right to make something just because you happened to file some paperwork first. These are opinions based on my morals and based on my desire to be able to go to work every day.

If patents disappeared tomorrow, people won't all of a sudden stop inventing things. The motivation is always there. There's so much profit in bringing to market novel inventions--with or without patents. As evidence look at the number of profitable companies that hold no patents. What WOULD stop overnight is companies using their war chests and lawyers (rather than their smarts) to bully other companies out of the market. And before you suggest it, I believe the societal "disclosure" benefit of the patent process is overblown in this day and age. Society no longer needs a government patent list to figure out what the latest advances in science and technology are and build upon them.

Re:Big Software Corps

[jonbryce]

The risk with your argument, and your example is that you leave the possibility that some software patents could be valid. What about public key cryptography for example? That was a totally novel, inventive idea that a PHOSITA at that time couldn't have possibly come up with. I still believe that patent shouldn't have been granted.

Re:Big Software Corps

[HungryHobo]

You mentioned earlier that the you are puzzled as to why so many people within the software industry itself want to do away with software patents followed by an unsupported dig at those obviously uninventive and uncreative people.
how the answer isn't obvious to you boggles the mind but lets assume you've never made the slightest effort to understand the culture in the software industry nor made the slightest effort to understand the nature of writing software.

the culture was shaped in decades past by hordes of the kinds of people who are willing to sit on their own reading manuals all night long, this leads to a certain bias towards the little guy

1:
Anyone can do it, that's one of the best things about software.
if you have a working brain you can create useful software.
Most of the time no factories are needed, no massive capital, just enough for a cheap laptop and cost of living for a few months.
Patents being stupidly expensive to obtain are as such nothing but a barrier to entry to the small time programmer.
I could live for a year on the cost of pushing through a handful of patents.

2:
It's utterly impossible to avoid infringing on at least some patents if writing any large piece of software and unless you happen to have a legal department and millions of dollars there's no way to be sure.
And I can never know for sure, if I create something useful and give it away free out of the goodness of my heart or sell it I could wake up to a lawsuit that could cost me everything I own.
And there is absolutely nothing I can do to protect myself other than to not create useful things and not sell them or give them away.

Does the patent office offer any system where for a fee that wouldn't cripple a normal person working a normal job I can submit my code to be compared to existing patents and receive a list of all patents I'm infringing and also receive complete immunity from any claims from the owners of patents not listed?
If it does I'll happily remove this complaint.
If it does not why am I expected to be able to do what the patent office cannot do itself?

3:
Programming attracts maths geeks to whom programming is merely an extension of mathematics, the mere idea that you can patent doing a certain type of calculation is absurd to them.

4:
At the other end of the scale programming attracts artists (who can oddly overlap with the above) who view a piece of software like a piece of music, to them patenting a particular algorithm is as absurd as patenting writing a piece of music in 4½/4 time.

5:
The software industry is distributed.
In a centralized industry like auto-mobile manufacture where there's a handful of really big companies, expecting each one to have a legal department which can wade through the recent patents in related areas is somewhat reasonable.
Expecting every developer in the world to keep track of every patent is absurd.
Especially when they can get fined triple the amount for trying to do that kind of research themselves and failing.
which effectively forces you to work for someone else if you're poor or hire a legal department if you're not.(which also fosters feelings that it's just corruption and lawyers making utterly useless and wasteful jobs for other lawyers)

and many many other reasons which other slash-doters will berate me for not including.

Your snide and insulting remark that the programmers who complain about software patents are the uninventive ones only displays your complete and utter ignorance of the issue.

Some of the best and brightest minds in the industry including Knuth http://www.pluto.it/files/meeting1999/atti/no-patents/brevetti/docs/knuth_letter_en.html (who quite literally wrote the book on algorithms) and John Carmack( Ask a gamer if you don't recognise the name, recently moved into rocket science after reaching the top of the field in graphics engine programming and getting bored) are opposed to patenting algorithms and software.

Re:Big Software Corps

[Anonymous Coward]

Thats why they'll hire lawyers instead.

Re:Big Software Corps

[rcw-home]

Are you saying software simply can't be inventive? That you can't possibly think of something in software that anyone else couldn't have thought of, even given the exact same problem set?

"Everything has been thought of before. The trick is to think of it again." -- Johann Wolfgang von Goethe

...despite the problems, there are a number of true innovators in software.

Here's the words of one of them:

"The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying." -- John Carmack

If you really want to change things, to truly help fix the system, UNDERSTAND IT. Really understand it. Slashdot won't help with that.

Most of the people I talk to about this have never heard of the guild system that preceded the patent system or the constitution's stated purpose for the patent system, and have never contemplated how the way we share information today may have rendered both obsolete. They blindly assume the system is good. I don't.

Re:Big Software Corps

[rcw-home]

I'll readily acknowledge the flaws with seeking protection for what are likely obvious improvements to everything

Let's go with a more cut-and-dried revolutionary-not-evolutionary example: Why do you think airplanes have so many French-named parts?

Re:Big Software Corps

[GNUALMAFUERTE]

I am a software developer. I own a software development company and employ ~11 people. We are in Argentina.

Most of our code has been released under the GPL, and we profit from providing support and from selling complete solutions (turn-key) that include our software. We develop our software, and a big part of our hardware, including our own domotics main boards, protocol and devices, and even our own cases (made of Aluminum and Acrylic that we produce using three CNC mills in our own factory).

FYI, we hold absolutely no patents, and both my business associate and I, who together own 100% of the stock of our company, have agreed to never apply for a patent.

Any other questions?

Re:Big Software Corps

[GNUALMAFUERTE]

I agree 100% with you. The funny thing is that I have spotted exactly 2 posts in this whole thread defending patents. They were both posted by patent attorneys (said so in the posts).

Go figure.

For the record, I share your policy of no patents. Read (http://slashdot.org/comments.pl?sid=1783936&cid=33548302) for details.

Re:Big Software Corps

[drewhk]

Have it ever occurred to you, that we, practitioners of the software industry, simply DO NOT WANT PATENTS? We do not want to file patents, and we do not need the protection of the patent system, at all.

But still, we are forced to follow a system that the majority of us thinks is not useful.

Is it your job to decide whether software patents are useful or not, or is it ours, whose work you are supposed to protect?

Re:Big Software Corps

[Hairy1]

Methinks you protestith to strong.

Are you a patent lawyer?

Re:Big Software Corps

[Draek]

What I find most interesting is that its biggest proponents are people within the software industry itself, but usually not the real innovators.

Citation needed. And I hope you won't use "numbers of patent held" to determine the degree of innovation but rather an objective, reasonable criteria that does not result in a circular argument.

Are you saying software simply can't be inventive? That you can't possibly think of something in software that anyone else couldn't have thought of, even given the exact same problem set?

Strawman fallacy. The most usual argument against software patents are simply that software is of far greater value to society at large unpatented than otherwise, like math, not that it can't be inventive per se.

The flaw is with a lack of a rigorous model for determining what is and isn't obvious; the difficulty of truly understanding, without hindsight bias, what the level of ordinary skill in the art is.

That and differentiating what's an invention and what's simply math on a computer. But then again...

Stop trying to completely break what you don't understand, because despite the problems, there are a number of true innovators in software. And I won't say that they deserve patent protection, because that's not the point. But they should be given patent protection because we need to encourage that level of innovation, and you can tell where this innovation is most needed from those areas where huge gaps exist in FOSS offerings.

Your trollish closing aside, your argument does not necessarily follow: you still need to prove that said level of innovation is actually *encouraged* by such patents rather than obstructed by it. So yeah, Citation needed.

Re:Big Software Corps

[Anonymous Coward]

I am not a lawyer, law student, your lawyer, or anybody's lawyer. This is not legal advice, is intended as entertainment only, should not be taken seriously, nor read, seen, or copied by anybody, and is void where prohibited. Any and all usage of the following material, which we do not advise, should be under a supervised adult, and the reader takes all responsibility and liability for their actions and speech from reading this material.
----

With the possible exception of device drivers (which the SCOTUS has consistently indicated to be patentable), all software is a transformation algorithm, eg: a piece of mathematics that consistently converts mathematical inputs to mathematical outputs by following a series of well-known steps in sequence, like a Fourier/LaPlace/Z/Integral/etc. Transform. As mathematical equations are unpatentable, software is likewise unpatentable (with the noted exception).

The only exception to this rule is where the software directly controls something, like a motor. The method of control may be patentable as part of a device, and new and novel methods of control may likewise be patentable as improvements to the original idea. This is only my interpretation of multiple decisions by the SCOTUS, though.

Last, hardware description languages, like VHDL, Verilog, and SystemC. These are languages that describe hardware. The code itself is probably not patentable, but the resultant hardware likely is patentable, as it is a thing. These languages may make it easier to improve upon existing hardware, but any substantial (read: patentable) improvement is all but impossible without the original source code. This source code may be held as copyrightable material (or a simple industrial secret), and is therefore under the jurisdiction of applicable copyright and secrecy laws and contracts, but is not itself patentable.

Re:Big Software Corps

[garyebickford]

TL;DR, but I did note this bit:

Does the patent office offer any system where for a fee that wouldn't cripple a normal person working a normal job I can submit my code to be compared to existing patents and receive a list of all patents I'm infringing and also receive complete immunity from any claims from the owners of patents not listed?
If it does I'll happily remove this complaint.
If it does not why am I expected to be able to do what the patent office cannot do itself?

This is not going to happen, unless P=NP. Sorry! :D
    It's functionally equivalent to the halting problem.

And, of course, yet another reason why software patents should never have been allowed.

Re:Big Software Corps

[Lokitoth]

The problem with this argument is that you can counter-argue that all software operating on top of a CPU is in fact moving around electrical charges in specific ways and thereby performing a physical transformation. From there you build up "accepted" norms - create an abstract architecture with particular inputs and outputs which are defined as a collection of electrical charges in particular order. Using these norms you can describe any piece of software in standard language (reads user input, does processing in a novel way, outputs to screen in novel way, etc.) and have it reduce to a physical manipulation of the real world. If device drivers are patentable because they manipulate the physical world, so is any piece of software.

Re:Big Software Corps

[hardwarefreak]

Try bribing a policeman - a large percentage of the time, you'll end up in jail.

Apparently you're not from New Orleans, where you only go to jail if you don't/can't pay a bribe. Their drug unit took over the city's drug trade via forced bribes, if you will, forcing dealers to give up their business to cops to avoid arrest/jail time. At least, that's the way it used to be. The FBI crackdown some years ago may have cleaned the NOPD up just in time for Katrina.

Re:Big Software Corps

[Anonymous Coward]

please stop presenting facts. It makes it harder for the slashbots to blindly hate patents.

Re:Big Software Corps

[Anonymous Coward]

One question: isn't the fact that you own the piece of land you live on solely based on that you filed some paperwork before someone else did?

Re:Big Software Corps

[Anonymous Coward]

HTML wasn't obvious, and if it had been patented, the Web as it currently stands would not exist, and you and I would not be having this discussion.

Ditto for IP. Ditto for TCP. Ditto for HTTP.

But Ethernet was patented to hell, and it still thrived.

Re:Big Software Corps

[Anonymous Coward]

So you make money off the fact people can't figure out your software on their own. Yeah, patent attorneys are the parasites. *eyeroll*

And for the record, South America in general has shit for patent protection, so it's not like your no-filing protest really matters.

Re:Big Software Corps

[Anonymous Coward]

In case of software, one person can make the same invention independently and take advantage of it without inconveniencing another person that develops the same or a very similar solution. That is where the analogy with land or other physical objects breaks down.

Re:Big Software Corps

[Sabriel]

Key phrase being, "when functioning correctly". The trouble is the patent system *cannot* function correctly in this scope. It no longer achieves its reason for existence - to promote the sciences and the useful arts - because the feedback mechanisms inherent to its design do not scale to this level with an overall positive output. That there are still some success stories does not excuse all the failures. It has become a window-breaker.

Failure to recognise this, is sad; refusing to recognise this, is corruption.

Re:Big Software Corps

[Anonymous Coward]

I seem to recall a small company winning a very large patent suit against Microsoft recently after Microsoft reneged on their contract and stole the code anyway.

Re:Big Software Corps

[mynicknamewasused]

false dicothomy, fresh engineers can be good! its just not so very common,

Re:Big Software Corps

[SanityInAnarchy]

I only see one patent on Ethernet, which should've expried in, what, 1995?

There are all sorts of other ways of wiring computers together -- the physical connection almost doesn't matter. So long as I can connect to at least one router plugged into the public Internet, I can talk to anyone else there, even if I only use Token Ring and everyone else only uses Ethernet.

But I do find the timing interesting -- the first consumer broadband service didn't happen until 1996, though we had dialup earlier. So good ideas certainly will thrive, even if patented, but often they won't truly fulfill their promise until the patents expire.

Re:Big Software Corps

[Anonymous Coward]

Here's an aspect of a no-patent world that you didn't mention: the large companies that you hate bullying smaller companies would, instead, reverse-engineer the inventions of smaller companies and subsequently use their economies of scale to eliminate their smaller competitors.

I think the awarding of patents needs to be radically scaled back. But I'm also aware there would be consequences that would be less than desirable.

Re:Big Software Corps

[Stiletto]

Here's an aspect of a no-patent world that you didn't mention: the large companies that you hate bullying smaller companies would, instead, reverse-engineer the inventions of smaller companies and subsequently use their economies of scale to eliminate their smaller competitors.

1. They do that today, in countries that do not honor US patents, yet innovation and invention continues unchecked.

2. I would be willing to bet that the scenario where a small company / individual uses a patent to stop a large company happens with only a tiny percentage of total patents. The vast, vast, vast majority of patents are issued to large firms and patent trolls and are primarily used to bully/leverage other large firms. The cost and time commitment required to take advantage of the patent process (including defense) pretty much excludes small organizations.

There are exceptions, of course, and if this thread is still alive, they'll no doubt be posted below, but by and large, the idea that the patent process benefits the little guy is a myth.

Re:Big Software Corps

[Sir Homer]

With regard to software specifically, this movement to strip an entire category of inventions of protection lacks nuance. What I find most interesting is that its biggest proponents are people within the software industry itself, but usually not the real innovators. Are you saying software simply can't be inventive? That you can't possibly think of something in software that anyone else couldn't have thought of, even given the exact same problem set? Because boy oh boy, if that's true, we're really overpaying software "engineers" then, aren't we?

What I find interesting is the biggest proponents of software patents are the patent lawyers themselves, and usually not software engineers. Well that that all interesting, because lawyers with their $10k filing fees and multimillion dollar lawsuit fees (usually by suing software companies) seem to benefit the most from their existence.

Understand, when a lawyer tells you what is good for your industry, run the other way. RUN FAST.

Re:Big Software Corps

[Anonymous Coward]

http://www.macnn.com/articles/09/10/19/other.computer.makers.also.targeted/

Little value to them...

[Anonymous Coward]

"As it is, by the time companies get a software patent, there's little value to them because, after six years, the industry has already moved on."

Do you mean little value to society, or little value to the company getting the patent? Because, well, nothing like six extra years for everyone to independently develop the obvious concept you patented...

Re:Little value to them...

[Anonymous Coward]

Most software patents seem to be used more for when someone has an idea but cant be bothered or cant
figure out how to make it work. They sit back and let someone else do all the work then sue them.

Not true

[DoofusOfDeath]

by the time companies get a software patent, there's little value to them because, after six years, the industry has already moved on."

The true value of a software patent isn't to protect an invention. It's to have a tool for extorting others. In that sense software patents have a shelf life much longer than six years.

Re:Not true

[Dolphinzilla]

harsh words - but true. Most companies that get software patents eventually make their money on licensing the patent and not necessarily bringing it to market themselves - but in all "fairness" if someone had the idea first then why shouldn't they get some benefit from it ?

Re:Not true

[NickFortune]

but in all "fairness" if someone had the idea first then why shouldn't they get some benefit from it ?

Seriously, why should they? I've yet to see any sort of justification for why an idea (as opposed to a product or an implementation) should be rewarded.

The closest I've seen ran along the lines of "that's the way the system works now, so that makes it ok", which doesn't really help very much.

Re:Not true

[Anonymous Coward]

If person A had the idea first but person B had the same idea all by himself, it is in no way fair that person A gets any benefit from it. It was B's work, not A's, even if A did the same thing first (and yes, it was duplicate work in this case).

This "first one wins" (i.e. independent reinvention not being an excuse) is one of the many ways in which the patent concept is broken beyond repair.

Re:Not true

[Anonymous Coward]

In all "fairness" if I independently had the idea second, why shouldn't I get the same benefit?

Re:Not true

[muuh-gnu]

Again, patents should not _at all_ be awarded for having ideas. Ideas are cheap. Everyone has ideas. Its the concrete implementation of a idea what makes it valuable to other people, because its basically its showing them "HOW TO", so rewarding implementation-producers with patents is a net win for society.

It becomes a net loss, however, when you dont reward them for producing smething of value, but, as you suggest, for merely being the first in producing something everybody else also can easily come up with, but just hasn't. By rewarding people merely for "being first" and not for hard work, you basically encourage an patent run where people put more effort in searching for patenting possibilities than putting in the work inventing great but hard stuff. You encourage canny lawyers instead of tinkerers and engineers. Which then again makes it even harder for the tinkerers and engineers to produce real, tangible stuff, because they have to route around all the obvious, but legally "protected" patent hurdles.

By encouraging patent trolling, i.e. "i patented this shit first, now pay me, mwahaha!", you also make investments in patent trolling more valuable, so more and more people will invest in trolling and less ans less in actually doing the work inventing stuff because of the obvious lesser returns. Its a vicious circle.

Re:Not true

[Anonymous Coward]

Actually the value is in the fact that the patent becomes an asset that can be valued and is transferrable independent of the inventors. Getting investment in a small company with IP, but without some 'anchor' for that IP such as a patent is very difficult.

Re:Not true

[Anonymous Coward]

Because ideas do not create value.

Only execution of ideas create value.

Re:Not true

[Anonymous Coward]

True. It's intellectual capitalism. Like with regular capitalism where the wealth is shifted from those who do to those who own. (Not pwn)

Re:Not true

[MasaMuneCyrus]

They DO benefit from it. If Adobe puts a new image processing trick in Photoshop, then Photoshop is the only software that has it. PS isn't open source, so if they don't want to disclose how they did it, the only way to understand how they did it is by being actively involved in image processing research areas of mathematics. By the time someone else comes up with the same or a similar trick in Gimp, or something, Adobe will have already benefited from their idea -- assuming that they were business-smart and marketed, that is.

Re:Not true

[MachDelta]

The idea behind patents is to protect & reward those individuals (or companies) that spend time researching and developing a product. Think about this scenario: Company A spends 10 million making a butt-scratcher that whitens your teeth and bathes the dog. They build a bunch and sell $5 million worth of the device. Company B sees this poochy-whitening-ass-scratcher and slaps their own together for 1 million. They turn around and sell $5 million worth too. The end result is that Company A, the "inventor" of the device, is still 5 large in the red, while Company B, which contributed precisely squat to the birth of this device, pocketed a cool 4 mil. Is that fair? Most would say no. So the idea behind a patent is that company B either a) cannot legally sell their own version of the invention, or b) has to pay some of that cheddar back to the inventor (in the case of a license agreement).

So, like a lot of things, patents are good in theory...

Re:Not true

[pgmrdlm]

Seriously, why should they? I've yet to see any sort of justification for why an idea (as opposed to a product or an implementation) should be rewarded.

From someone that has never had a profitable idea of your own. Your just jealous of the individuals that have.

When you come up with a profitable idea, please let us know how long it takes you to apply for a software patent. Or, please let us know why you didn't. And provide citation.

I look at people like you and wonder how often you throw temper tantrums because you weren't born smart enough to do what others have.

Re:Not true

[man_of_mr_e]

As I said in another thread. I think patent submitters should have to "show their work". They would have to prove it wasn't just something that happened during the development of a product, which they later discovered they could patent. It would have to be pre-meditated, developed, and worked into a real "invention" rather than "Hey look, nobody has patented sneezing on a handkerchief yet, let's grab that".

I'm almost tempted.. almost.. to say that they even should need to prove that they would not be able to develop the idea without patent protection. That is to say, if the invention was created in response to market needs and provided plenty of market compensation, then patent protection is unnecessary. Patent protection should only extend to inventions that need patents in order to be profitable.

Re:Not true

[Tamran]

but in all "fairness" if someone had the idea first then why shouldn't they get some benefit from it ?

Just because someone had the idea first, doesn't mean that someone else won't have the idea second (and independently). If the second person can make it work and actually demonstrate it, then aren't they more worthy of the coveted patent?

That all assuming of course that the concept of patents is not total bullshit, which one could make a strong argument for I'd guess.

Re:Not true

[arose]

You don't need to be smart to have ideas. You have to be smart to implement them. And maybe to understand this rather simple concept?

Re:Not true

[pgmrdlm]

Ideas can be sold and the person that buys them can implement them. You nor anyone else can implement something that was never thought of. Copyright gives you sole ownership of the idea which than gives you full right to sell that idea to someone else to implement.

Again, the ones that complain the most are the ones that did not come up with ideas themselves. Its pure simple jealousy. Nothing more, nothing less.

Re:Not true

[Teancum]

So lets say I invent something genuinely novel, like say a device that will transmit a motion picture over a distance electronically, with sound, and reproduce that motion picture faithfully in high resolution. And let's suppose that efforts to get this to work have happened for several decades previously with this approach being something genuinely novel as it hasn't been tried before. So with all of that effort to get it put together, you apply for the patent and the USPTO actually grants a patent on that invention (in this case it issued patent# 1,773,980). Then a very large company with a whole lot of political influence decides to copy your invention and do a smear campaign on your name for having never made the invention in the first place?

See Phlio T. Farnsworth and see how far that got him in terms of dealing with the Radio Corporation of America (RCA). It took him decades to even get a court to listen to his arguments, much less be able to collect any money from his invention above and beyond the court costs involved. His whole career is one of getting burned because he wasn't nearly as well connected politically or had the money to engage in the fight effectively. His is really an example of a garage tinkering that resulted in a powerful idea that has only recently been abandoned in favor of much newer ideas to accomplish the same task.

This should have been a classic example of how the patent system would work, but instead it is to me a very good example of what is messed up over the patent system and why even for non-software applications it simply doesn't work.

Re:Not true

[MachDelta]

That is a pretty good example, but I think it points the finger more at the political and legal systems than the patent one. Granted they are very similar, but in theory the patent office did it's job (granting a patent) whereas the legal system dropped the ball by refusing to enforce it. No surprise that it was the little guy holding the short straw. :(

Re:Not true

[0111 1110]

Give an example of an idea that you could sell. Patents were never intended to protect your ideas. And if you feel that your ideas actually need some kind of protection, then I am willing to bet you are not very intelligent yourself. Intelligent people don't think like that. They know that truly original ideas are basically fiction. Let me sell you an idea: software patents are so ridiculous that only a complete idiot could have thought up that particular idea. How do you like them apples?

Re:Not true

[Tablizer]

In practical terms, some analysts say that Farnsworth could have received a decent reward much earlier if he was willing to partner with RCA. But, he wanted the whole TV enchilada for himself, and paid the price. RCA had resources and technology that Farnsworth didn't and visa verse. My point is that Farnsworth could have done better for himself if he negotiated some.

Re:Not true

[pgmrdlm]

No, the ones that arn't inteligent are the people that are jelous of others for something they have created. Be it an idea, a process, or a product.

If the shoe fits, put it on.

Re:Not true

[NickFortune]

From someone that has never had a profitable idea of your own. Your just jealous of the individuals that have.

All right. Let's suppose for a moment that I am as you suggest: stupid, unimaginative and covetous. That doesn't bring us any closer closer to answering the question.

Why should we reward abstract ideas rather than concrete implementation?

Re:Not true

[AK Marc]

Ideas are never profitable. "7" Now where's my money? You have to at least market the idea for it to have value, and even then, that's only speculation on the part of the buyer that an item will be made that benefits from that idea.

Re:Not true

[Anonymous Coward]

but in all "fairness" if someone had the idea first then why shouldn't they get some benefit from it ?

Seriously, why should they? I've yet to see any sort of justification for why an idea (as opposed to a product or an implementation) should be rewarded.

The closest I've seen ran along the lines of "that's the way the system works now, so that makes it ok", which doesn't really help very much.

I'll tell you exactly the reason why:

Say you're a member of an engineering company of 10 people. You work long and hard and finally develop a novel solution to something - it takes you 2 years, and another 2 years to finally eke out a revenue stream that supports your business and starts to pay off the long hours and many meals of ramen noodles while you were strapped for cash.

Along the way, MegaCorp XYZ comes along and sees what you've created. They reverse-engineer it, and within 3 months they have a working prototype, and in another 3 months they'll have an assembly line tooled up to crank out the exact same thing at half the cost and at 10 times the rate. Their PR and marketing departments go into overdrive and hype the hell out of their product, claiming it to be superior to yours. Now, simply due to inertia and name recognition, your market share and revenue stream that you worked like hell for is down to a trickle, and a year later you're dissolving the company or filing for bankruptcy because everyone buy's MegaCorp XYZ's product.

Congratulations, you've spent 5.5 years working your ass off and gotten.. nothing. All because a company with more resources decided to stomp on you. Small business represents 99% of the workforce in the US. Without the incentive provided by protection of inventions, there would be zero innovation at small business, and most innovation in the US would be dead. (Interestingly enough, that points to a non-obvious possible partial solution to the patent problem: patents can only be enforced based on the ratio of the size of the companies involved. E.g. IBM vs. startup would have a ratio of ~100,000; mid-size company X vs. mid-size company Y would have a ratio of 1, etc., and only when the ratio of the companies was below a certain threshold would the court consider hearing a patent infringement case.)

*THAT* is why patents exist, and why first-with-the-idea deserves some protection.

Of course, I think most software patents aren't worth the paper they are printed on. There are a handful that deserve patent protection, but not very many. And certainly the time periods associated with filing, reviewing, granting, and longevity are completely out of whack for most of the software patents that actually ARE worth something.

Re:Not true

[tycoex]

WTS 1 Concept of Freedom.

Ideas can be bought and sold right?

Re:Not true

[pgmrdlm]

Because if there never was those abstract ideas, we would be worse off. Doesn't matter WHO implements them, it matters that SOMEONE thought of them. Your argument is to forgo the person that came up with the idea, no compensation. And reward the person that JUST implements them. The person that had money to put the idea into implementation.

The money person should be compensated, they took the risk and foot the bill for implementation. But to completely ignore who came up with the idea shows how little you think of your fellow human beings and what they HAVE contributed. And /. is the first to bitch and moan how the little man is fucked in todays society. Your position just fucks him more. Be it a company or an individual. You are fucking them out of rightful compensation for something they have contributed.

And lets cut to the chase, and skip the fucking bull shit. There IS a market for ideas. They are traded for a monetary value. Just because YOU don't feel people should be compensated for their ideas. Others quite obviously do think these ideas are worth money and they do pay for them. Ideas are traded every day.

Again, back to the jealousy thing. The ONLY compensation you are receiving is in wages paid for implementing ideas. Your jealous because your not part of the high profits. Hey, come up with an original idea on your own and market it. There are buyers.

Otherwise, keep your nose to the wheel and implimenting other peoples ideas.

Re:Not true

[NickFortune]

Because if there never was those abstract ideas, we would be worse off

People were having ideas long before there was a patent system. I really don't people are going to stop just because they can't get a monopoly on the idea. Still, at least we're addressing the issue now, which is a definite improvement.

And reward the person that JUST implements them. The person that had money to put the idea into implementation.

That sounds like the person with the idea made a bad deal with the venture capital guy. Patents are not a substitute for business acumen, nor should they be.

And lets cut to the chase, and skip the fucking bull shit. There IS a market for ideas. They are traded for a monetary value.

There used to be a market for slaves. People were traded for a monetary value. Does that mean that trading and owning slaves should be enshrined in law? Because if not, then the fact that you can make money is not a sufficient justification for their existence.

Again, back to the jealousy thing.

Again back to the cheap ad hominems. If you can't make your point with out getting personal, you probably can't make it at all...

Re:Not true

[Anonymous Coward]

harsh words - but true. Most companies that get software patents eventually make their money on licensing the patent and not necessarily bringing it to market themselves - but in all "fairness" if someone had the idea first then why shouldn't they get some benefit from it ?

Well, let's see.

First of all, we'll have to give all the patents for everything robotic probably to someone like Asimov. Philip K. Dick would have a big pile of them, along with Ray Bradbury, HG Wells, Arthur C. Clarke, Jules Verne, well you probably are starting to get the idea.

People who have ideas and then write stuff about them, we call authors.
People who have ideas and then implement them, we call inventors.

We have the two very different words for some very good reasons. Number one is the basic knowledge that those two activities are not the same at all. Ideas are great- for a starting point, but in order to make something you need the blood, sweat, and tears. Patents are supposed to be a method for rewarding those who put forth the "blood and tears", giving them some time to see profit from their work, but at the same time ensuring that the fruits of their labor don't vanish into history as a victim of the inventor's insecurities.

I have a buddy who climbs mountains. He uses these things called pitons which are metal rods which are hammered into the rock face and then you can rope yourself to them. There are many brands available, and several patents covering them. The patents were given to the first person who actually made one, and took it to the office. We don't give it to the first guy who said "Gee, it'd be nice if we could hammer something metal into that cliff so we could tie our ropes to it." Instead, we gave it to the guy who actually made a piton, tested it, refined it, and then wanted to produce it.

Software patents are fucked because they don't adhere to that standard at all. For example, when I was in high school I should have patented the idea of a "Using a mouse and keyboard to control a virtual representation of a physical creature or fantastic creature or animal, within a 3-dimensionally represented virtual world." Because that way Blizzard would owe be a freaking huge pile of cash.

Re:Not true

[pgmrdlm]

It's simple. My point is that the people that complain are just jealous. If you can't deal with that being the point. You should have never picked up the conversation.

Re:Not true

[Teancum]

The deal that RCA offered was $100k and an employment contract that required Farnsworth to turn over this and all future inventions he may ever come up with to RCA. While not a terrible offer, it certainly could have been better and didn't give much wiggle room to Farnsworth.

What Farnsworth was more interested in was a more typical patent licensing and royalty contract where he could continue his own research into other areas but get a steady income from the invention royalties.

As to if some intelligent negotiation and perhaps a less abrasive approach in terms of dealing with David Smirnoff could have made a difference, I wasn't there at the time to see how the negotiations went down. Philo Farnsworth was a bit of an eccentric personality that would have fit in more with a Silicon Valley company much better than the hierarchical and rigid companies that were common in the 1930's and 40's. There was some animosity between David Smirnoff and Philo Farnsworth on a personal level as well that impacted this negotiation and future efforts as well.

Re:Not true

[AK Marc]

That's a non sequitur. They aren't benefiting from an idea. They are benefiting from a specific implementation of an idea. That's completely unrelated. As it is now, patents apply to things that are just ideas. They patent one-click ordering, not a specific machine that does one-click ordering. Not their implementation. But the general idea of it. And it isn't even new, but it's the idea that's multiple thousand years old of "put it on my tab" but on a computer. So then, anyone else wishing to implement the very old idea of "put it on my tab" can't. It doesn't matter how they do it. The idea, not the implementation gets patented (with general wording about the implementation that sounds specific, but is really a very general implementation).

Re:Not true

[NickFortune]

It's simple. My point is that the people that complain are just jealous

mmm... and while that's perfectly valid if all you want to do is throw insults around, it doesn't do anything to address the original question.

Still, if that's the best you got, I guess that's the best you got.

Re:Not true

[pgmrdlm]

In my experience, the ones that complain about others making more or having something they don't are jealous. Slash doters are socialists at heart. Just look at the posts. The complaints about big business. These assholes are just as power hungry as any business they complain against. Just watch the the moderators to prove my point.

Those that complain about a specific topic of distribution of wealth or compensation are the ones that are not on the receiving end. They want what they don't have, so they campaign against those that have what they want. Why, simple. If they can't have it, nobody else should either.

Nothing but a bunch of cry babies that are pure fucking hypocrites. And it's easy to show how these assholes are hypocrites. Watch their ranting about companies and licenses, than watch the opposite rants from he same people about open source and licenses. Fucking hypocrites.

Re:Not true

[NickFortune]

That still doesn't address the question I asked, and adds nothing new to your argument apart from some swearing.

We would seem to be done here. Thanks for playing.

Re:Not true

[pgmrdlm]

The only thing people are advocating here is the removal of patents. Why, because they don't have their own.

The patent office is broken because it has been ignored by congress and what ever administrations.

Want it fixed. Create a panel of business, social, judicial, and technical people. Streamline and educate the system to issue patents correctly and in a exspeediant fashion. If the panel feels more people should be hired from various professions, which is most likely what should occur. So be it. Do it.

Whats so hard about it. Other than the only thing the socialists on this web site want is the elimination of the office completely.

Not just the PTO's fault

[Pojut]

You know, if people would claim only what they've fucking invented on patent applications, that backlog would be much smaller. Way to go, jerkoffs.

Re:Not just the PTO's fault

[CowFu]

I worked in my university's patent office (we help you file the necessary paperwork to the necessary people, not a real patent office). There were so many people that tried to patent things they did not invent or were just not patentable:

-A rock you put on your BBQ grill, then cook the steaks on your hot rock.
-Converting propane tanks into makeshift bomb shelters but cutting off one side and climbing inside
-A penny jar that had engraved markings on the side to tell you how much money you had (approx) if you only put pennies in it
-A cotton ball wrapped in string that you could light on fire with lighter fluid and 'play' with

And my personal favorite:
-A handshake machine, its just a mannequin arm that moves up and down on a small motor (the drawings made it look REALLY like a handjob machine)

Re:Not just the PTO's fault

[KraftDinner]

So with these examples, is there any "triage" that happens in the USPTO? Even just to weed out the absolutely ridiculous. I'd imagine there is quite a number of applications submitted every year that fall within the ridiculous category.

Re:Not just the PTO's fault

[CowFu]

Only if they were stopped by someone like me, explaining to the person why they can't submit this patent. The PTO takes every application seriously which is both a wonderful and horrible thing, until it can be proven un-patentable or that it infringes on an earlier patent. This is done through a semi-long process of research that isn't always done correctly (because of the sheer magnitude of searching for similar patents or parts of similar patents).

On a side-note, I want to clarify that all of those items listed did not get formal paper-work submitted to the Patent Office. If they did they I would not be able to talk about them here or I would be in violation of my previous contract. There are a lot of ridiculous ones that went against my advice and filed anyways.

Re:Not just the PTO's fault

[gbjbaanb]

I doubt that.. recall James Gosling talking about how he and colleagues at Sun had a competition to file the most ridiculous patent applications? He "invented" the light switch, and he says it was pretty dull in comparison to the others.

Re:Not just the PTO's fault

[oldhack]

Dang, you would think those are all typical patent candidates if you had been hanging around slashdot a while.

Just another case of the muddled mumbo-jumbo that is our legal system utterly incapable of dealing with the progress of technology, just another aspect of the sclerosis that is choking the life out of our country.

Re:Not just the PTO's fault

[Gerzel]

No determining if someone is being a jerkoff is part of the USPTO's mission.

Though their current admission strikes me similar to a guy coming out as gay to his parents years after his mother started introducing him to nice boys.

Re:Not just the PTO's fault

[Qubit]

-A handshake machine, its just a mannequin arm that moves up and down on a small motor (the drawings made it look REALLY like a handjob machine)

Did they happen to include a working prototype?

Re:Not just the PTO's fault

[noidentity]

-Converting propane tanks into makeshift bomb shelters but cutting off one side and climbing inside

Or the opposite, if you forget to empty it first.

Re:Not just the PTO's fault

[Velex]

Though their current admission strikes me similar to a guy coming out as gay to his parents years after his mother started introducing him to nice boys.

I'm trying to understand your analogy and failing. Is there something wrong with being gay, and/or can one be made gay?

I think a better analogy would be someone who has a house with a leaky roof. Initially, he figures the dripping water in the kitchen when it rains is just a minor inconvenience and nothing more. Then one day it hits him that it's also causing structural damage.

Re:Not just the PTO's fault

[Anonymous Coward]

At least you understand why these are worthless. I work in a really narrow technical field that you need specific training in for a few years to really just start understanding, then some years real life experience to gain a deeper understanding. In my group we have a quota of 10 patent applications PER YEAR. In our group, we have a total of me, and one other guy. Maybe if I was really smart, I could put out 5 good ideas a year, but I am not that smart. Plus we both have a lot of other responsibilities that are more pressing (like actually developing research into products), so most of the time we just bullshit up inventions. This is a Forbes Top 50 company, so its not like a patent mill.
First we have to explain it to our own lawyers, who are hired specifically to deal with our division and have technical degrees. Generally, they don't know what the hell is going on. Then it goes to the patent office, where they don't know what the hell is going on. If they did, they'd surely be working somewhere else for more money. Sorry potential Einsteins...

Admittedly, some of the ideas are OK. But everyone else in the division does what we do. And every other big technical company does what we do. And every patent troll company sends a guy to technical conferences, who comes back, and tries to patent every slightly connected idea to every paper presented there. Seriously, one guy will submit 100s of patents in one day a few months after a conference from these companies which I have to check because they are in the sphere of what we are doing. And the poor patent office guys, its not like they don't do their job. Sometimes patents get submitted with 100s of claims, and you can see they've been ripped down to 1 or 2. At some point its going to come tumbling down, because there isn't going to be a solutions everyone can agree on. The patent office cannot process the ever increasing numbers, and the companies can not really act on patent infringements because they have so god damn many. I think they only keep so many to defend themselves against patent trolls and the like. There are a few high profile cases, but those are really exceptional, most patents are not that obvious (i.e. the patent is applied to some inner workings deep in the product which is hard for a 3rd party to find out)

Re:Not just the PTO's fault

[Ccomp5950]

He was saying, finally admitting you are gay while everyone else clearly knew so, to the point that your own mother is trying to get decent dates for you.

Re:Not just the PTO's fault

[Anonymous Coward]

And my personal favorite: -A handshake machine, its just a mannequin arm that moves up and down on a small motor (the drawings made it look REALLY like a handjob machine)

There must have been prior art, because I could see that one selling (and with no re-sale market). /. alone could fuel enough sales if we all didn't already have LEGO Mindstorms versions of our own. Although if he solved the chafing problem...

Re:Not just the PTO's fault

[Type44Q]

A penny jar that had engraved markings on the side to tell you how much money you had (approx) if you only put pennies in it

No 'jump to conclusions' mat??

Re:Not just the PTO's fault

[RealGrouchy]

-A penny jar that had engraved markings on the side to tell you how much money you had (approx) if you only put pennies in it

Heh, it took me a while to realize that you didn't mean a jar with a fixed, arbitrary number etched on the side "guessing" how much money is inside.

Hm... I should go patent that!

- RG>

Re:Not just the PTO's fault

[Stiletto]

Only if they were stopped by someone like me, explaining to the person why they can't submit this patent. The PTO takes every application seriously which is both a wonderful and horrible thing, until it can be proven un-patentable or that it infringes on an earlier patent. This is done through a semi-long process of research that isn't always done correctly (because of the sheer magnitude of searching for similar patents or parts of similar patents).

My opinion: The burden of proof ought to be on the applicant and the PTO to prove the invention is patentable rather than to prove the invention is un-patentable.

Re:Not just the PTO's fault

[Velex]

Thank you. That makes sense. In that case, it would be the natural state of the USTPO to be a disaster, so there's nothing that needs to be done to fix the USTPO.

Re:Not just the PTO's fault

[fysician]

Are you sure you really worked at a "university"? Was it University of Phoenix Online? I'd expect something in line with "A method and process to extrude titanium oxide to a nanoscale thread for improved semiconductivity." I'm not even in materials science field but I could come up with a more "university-caliber" patent application than those you listed.

Re:Not just the PTO's fault

[CowFu]

He can still sell them, he just can't patent them. You can't patent the flat rock you found in your yard.

Re:Not just the PTO's fault

[CowFu]

The non-student workers got those patent applications, I got the local townies we provided free consulting as a public service, and fellow students.

Missouri University of Science and Technology (University of Missouri Rolla when i went there)

Re:Not just the PTO's fault

[Gerzel]

Except, being gay in a person is a state that doesn't need to be fixed but being a disaster in the USPTO IS something that needs to be fixed.

Software Patents

[Liquidity]

He had part of the answer in there: "drop technologies like software patents"

not my experience

[Dolphinzilla]

I have 3 fairly recent patents (one hardware and two software) - none of them took over 3 years - and two of them took multiple rounds with the patent office

Re:not my experience

[Anonymous Coward]

I have 3 fairly recent patents (one hardware and two software) - none of them took over 3 years - and two of them took multiple rounds with the patent office

So, three contrary data points, not even randomly selected, tells us what? Wait, it's coming to me... "Hey, look at me, I have patents!" But do you realize that this makes you part of the problem in our eyes?

Re:not my experience

[nameer]

I have 9 patents issued and a handful more pending. As other posters have said, it's just part of some of our jobs. They have varied wildly in pendancy time. The fastest was 18 months, with no office actions (shocked the heck out of myself and the other inventor). The slowest (so far) was over 6 years. However, since Obama took office, I have had several that were mired in "docketed for examination" limbo suddenly get a flurry of activity and issue (three patents filed years apart issued within 50,000 of each other). Many of my colleagues are having the same experience. So I do suspect that things are changing at the USPTO. The dashboard and article seem to bear that out, at least in effort.

Software patents?

[airfoobar]

Why is the focus on software patents? Doesn't this show that the patent system in general doesn't scale up and needs fixing?

Re:Software patents?

[AnonymousClown]

Don't get me wrong, I'm completely against software patents, but I'm way more offended by "business method" patents. And patents on something that someone did a hundred years ago, only now someone adds the line "on a computer" and suddenly that's a new patentable event.

those and patent on genes. Plah-ease! No one invented anything there - it was just discovered.

Re:Software patents?

[Anonymous Coward]

The only thing the patent system needs to scale up is its ability to reject the huge, vast majority of patent applications, and to do so with prejudice so that they can't be refiled without some punitive penalty, like a fine (in addition to the extra cost).

Or perhaps abuse of the patent system could be penalized like contempt of court. Then perhaps we'd see some progress.

Re:Software patents?

[Anonymous Coward]

Indeed, however the scalability of the patent system is beside the point that it retards innovation and progress. There is no evidence that it serves its original purpose, and it should be dismantled entirely.

Re:Software patents?

[TheTurtlesMoves]

You don't really "invent" something either, you merely discover a way to do something.

Re:Software patents?

[elashish14]

Because you're reading it on /. ?

Re:Software patents?

[Anonymous Coward]

Has anyone patented masturbation on a computer yet? If not, I am THERE.

Re:Software patents?

[Anonymous Coward]

I'm neutral on the subject of banning software patents, but I think they should start by banning business method or merchandising patents, those which entail "we claim the sole right to offer such and such a feature (or more often, combination of features) or presentation idea to customers, for the 20 years after the patent grant". Some of the Intellectual Ventures patents fall into that category. Those never should be patentable, whether it involves software or not. The ban should be retroactive and they should start weeding those out.

Re:Software patents?

[Teancum]

I have yet to meet a single "garage tinkerer" who made an invention, went through the patent process, and made any money at all much less covered the fees necessary for a decent patent attorney and the filing fees to get the patent in the first place. To me, the whole patent process is simply a major scam that gives false hope to ordinary individuals who are thinking about an invention.

It also is important for anybody to realize that once you patent an idea, that the number of companies who are interested in your idea usually goes down after getting the patent. A typical company is more interested in something that their own employees have invented, as they control the clock in terms of when it gets to the USPTO and they don't typically need to pay a license to their own employee (that is usually covered in the employment contract).

For an established company, for defensive purposes only, I do understand why organizations will file for patents knowing full well that the patent process itself is broken. Microsoft for the longest time avoided patents for a whole bunch of reasons, but is flooding the USPTO now in part to cover their own behinds. That still doesn't explain why a private individual needs to file a patent.

Re:Software patents?

[Qubit]

I'm neutral on the subject of banning software patents, but I think they should start by banning business method or merchandising patents...Those never should be patentable, whether it involves software or not. The ban should be retroactive and they should start weeding those out.

Why are you so vehemently opposed to business-method patents and not to software patents? In both cases one is patenting the concept of an abstract process, whether it's an algorithm executed on a chunk of silicon or it's a process for pushing around people and merchandise.

What, in your mind, is so much worse about the business-method patents?

Re:Software patents?

[Anonymous Coward]

True, but "discovering a way of doing something" is different than "It has always worked this way in every living creature on earth... we just know how it works now".

It's like me patenting a cat purring. If anyone elses cat purrs after I get the patent, they have to pay me.

Actually...

*runs to patent office*

Re:Software patents?

[noidentity]

those and patent on genes. Plah-ease! No one invented anything there - it was just discovered.

Don't you mean designed?

Re:Software patents?

[airfoobar]

I agree. Patents are of no value to the small-time inventor. They are, however, invaluable to incumbent companies who wish to lock the up-and-comers out of the market, and of course patent trolls.

In other words, patents are a pure deficit for the public who have to pay for the bureaucracy, the unnecessary litigation and the lack of competition that results from this system. The empirical evidence is piling up against patents (like this article says), and unless someone steps up and shows some proof that this system resulted in more innovation, the whole thing will have to be thrown out the window.

And honestly, I don't expect patent supporters have any proof to show, so the question is -- how long will it take for the patent system to be taken down? There is no question that the patent supporters are rich and powerful (that includes Microsoft, btw, who say they just wuv patents), and those people can be very "persuasive"...

Re:Software patents?

[Anonymous Coward]

Why are you so vehemently opposed to business-method patents and not to software patents? In both cases one is patenting the concept of an abstract process, whether it's an algorithm executed on a chunk of silicon or it's a process for pushing around people and merchandise.

What, in your mind, is so much worse about the business-method patents?

Software patents such as the one for public key cryptography follow in the tradition of the engineering patents. That's what I don't object to keeping (as I said, I'm neutral). Notice that they do not prevent a business (or foundation, hobbyist, etc) from making a competitive offering, they simply claim an avenue of implementation which, assuming that the patent examiners have done a good job, may not have been hit on for many years otherwise. Contrast with business methods and merchandising patents, many of which seem to be the output of a bunch of bright people sitting around a conference table jabbering excitedly while hoping that some of their ideas are at least five minutes ahead of what someone else has filed.

Re:Software patents?

[kaoshin]

An invention is a new composition, device, or process. Discovery is the finding of something that already existed, or finding something by accident. Many inventions are based on discoveries (i.e. microwave cooking). I think the real issue is whether the non-obviousness requirement is applied too loosely to software.

Re:Software patents?

[Grond]

I have yet to meet a single "garage tinkerer" who made an invention, went through the patent process, and made any money at all much less covered the fees necessary for a decent patent attorney and the filing fees to get the patent in the first place. To me, the whole patent process is simply a major scam that gives false hope to ordinary individuals who are thinking about an invention.

Here's an example: Jerome Lemelson. Individual inventor who was granted over 600 patents and made millions from his inventions. The charitable foundation he created has given over $140 million in funding to over 63,000 student and individual inventors.

Here's another one: Robert Kearns. The individual inventor who invented the intermittent windshield wiper. Kearns eventually recovered several million dollars from the car companies that knowingly copied his invention (and yes, he received considerably more in damages than he spent in legal fees).

Is a patent a license to print money? No. Do all individual inventors with patents profit from their inventions? No. But this has far, far more to do with those inventors tending not to have a very good business plan or, frankly, the invention not being very valuable. For further evidence, see the thousands of largely useless patents that corporations file for every year. Filing for economically unimportant patents is not limited to individual inventors, and it's not an inherent problem with the patent system.

Anyway, do you really want the government saying "no, this doesn't look important enough" to patent applicants? Why should we trust a patent examiner to be the judge of what is and isn't a valuable invention, especially when market conditions can change dramatically over the course of the patent's term?

Re:Software patents?

[Twinbee]

Everything is just 'discovered' - it's just that some things have more layers of ideas than others.

Re:Software patents?

[Grond]

And patents on something that someone did a hundred years ago, only now someone adds the line "on a computer" and suddenly that's a new patentable event.

It took a while for the courts to catch up to that, but they have. In Muniauction, Inc. v. Thomson Corp., 532 F. 3d 1318 (Fed.Cir. 2008), the Federal Circuit held that, where the only difference between the claimed invention and the prior art was the use of a web browser, the addition of the web browser was obvious, especially since the patentee did not prove that "incorporation of web browser functionality into existing electronic prior art systems was...beyond the ability of a person of ordinary skill in the art at the time the...patent application was filed." In that particular case, the Federal Circuit held that a person of ordinary skill in the art would indeed have been able to incorporate a web browser, and the patent was held invalid for obviousness.

So perhaps some very, very early patents essentially claiming "something known in the art but on the internet" will hold up, but the writing is on the wall for those kinds of software patents and business method patents.

Re:Software patents?

[DerekLyons]

Why is the focus on software patents? Doesn't this show that the patent system in general doesn't scale up and needs fixing?

Because, as is usual on Slashdot, the focus is on bias and politics - not on fixing the actual problem.

Re:Software patents?

[Grond]

those and patent on genes. Plah-ease! No one invented anything there - it was just discovered.

35 USC 100(a), "The term "invention" means invention or discovery."

35 USC 103(a), "Patentability shall not be negatived by the manner in which the invention was made."

Your argument was considered and rejected by the drafters of the Patent Act.

Re:Software patents?

[DerekLyons]

I have yet to meet a single "garage tinkerer" who made an invention, went through the patent process, and made any money at all

I've never met a black lesbian either. But, unlike you, I'm neither conceited enough nor self centered enough to assume that just because there are none among the people I've met (a vanishingly small fraction of the entire population of the US) that none exist.
 

It also is important for anybody to realize that once you patent an idea, that the number of companies who are interested in your idea usually goes down after getting the patent.

This represents an opinion, not a fact. There is a difference.

Re:Software patents?

[airfoobar]

Those are two examples where patents kind of worked as expected, and they are rare examples because I've also yet to meet any small-timers who benefited from patents.

At the end of the day, we need to ask, are those examples the exception or the rule? Can we really justify the millions of dead-weight patents that are there only to block possible avenues of innovation, and/or are abused by organisations like Intellectual Ventures? Are patents holding back rather than enabling innovation?

Re:Software patents?

[airfoobar]

You need to get out more ;)

Re:Software patents?

[Tacvek]

And then there's the full disclosure you're supposed to make. You try to recreate the damn thing, and it DOES NOT BLOODY WORK. Obviously, I'm not "skilled in the art" enough...

The disclosure is supposed to be a working embodiment of your claims. In a sane system that should be grounds for dismissing all claims in their entirety, with no opportunity for refiling/amendment. The claims would be treated like those in an expired patent, in the even that there exists a working embodiment of them.

Re:Software patents?

[Teancum]

On the other hand, I know of several people who have filed for patents and have spent tens of thousands of dollars for patent filings, only to get absolutely nothing from those efforts.

It would be one thing if I knew nobody (aka a "lesbian") but if I was involved with gay rights groups and never met a gay lesbian inspite of meeting hundreds of self-confessed lesbians of all sorts of racial and ethnic backgrounds, I would start to get suspicious that there might be some kind of correlation involved here... particularly if the general area had a large number of black people in it. That is precisely the situation I'm talking about, where I do know of a great many people including close relatives who have gone through the patent process but with no results. While it may be opinion, it is based upon personal experience and a consistent seeking after people who may have even succeeded so I could figure out what their "secret sauce" might be that got the patent system to work for them.

I do know personally a couple of patent examiners and intellectual law attorneys who seem to make a fairly decent living off of the patent system. Somehow I don't think that is the point, or perhaps it is that the legal system is the real winner here. It certainly isn't the lone inventor attending an "invention workshop" or calling the 1-800 number to get their idea put into the form of a patent. To me, those guys on television are just a legal form of snake oil salesmen from another era.

Re:Software patents?

[Teancum]

correction.... that was a "black lesbian" instead of a "gay lesbian"..... yeah, I hit submit before I checked it through.

Re:Software patents?

[AnonymousClown]

And many inventions are the result of much thinking and creativity. The artificial heart, MRI machine, and the integrated chip were not discovered - that was the result of someone's creativity and genius.

I could spend many many many lifetimes playing around with silicon and I would never have discovered the integrated chip.

Re:Software patents?

[Anonymous Coward]

I have yet to meet a single "garage tinkerer" who made an invention, went through the patent process, and made any money at all

You obviously never watched PitchMen on The Discovery Channel. Example after example after example of exactly what you claim to never happen. Not saying your other arguments are invalid, but the patent system still works for "garage tinkerers" and many others.

Re:Software patents?

[winwar]

There is a third possibility.

Eli Whitney, inventer of the cotten gin. Pretty much the definition of a patent worthy invention. Patented his invention. Didn't matter because people copied his design anyway. His patent was pretty worthless to him but he advanced society. In the end there is no way to expose an idea without it being copied. The only people who can slow that process have lots of money. (Apparently USPTO problems and litigation aren't new. Applied for patent in 1794, approved 1807. Profits from invention used in litigation. Crappy business model. Etc.)

The issue with software patents is why? They are already protected by copyright. Why exactly do they need patent protection? Does it promote the progress of society? If not, then we don't need it. Whether or not it helps people make money is irrelevent.

One should apply the same reasoning for regular patents. If they hinder progress more than advance it, get rid of them.

Re:Software patents?

[0111 1110]

Those are the exceptions. Not the rule. Most patents fail the obviousness test. And many fail the prior art test as well. Not only are they obvious, but they are not even original. I had one aspect of a product that I designed patented and it was utterly ridiculous. I was sure that the patent would be rejected, but it wasn't. There may not have been any prior art because it was so damn obvious. So in my case, the inventor (me) doesn't think that his invention is worthy of a patent because it fails the obviousness test and because it is more of an idea than an implementation, but the uspto disagrees. I really think you would have to work to find something that the uspto would not patent. I guess you can't blame them. That's how they make money. But the system is very broken.

Re:Software patents?

[udippel]

Absolutely spot on! - IMHNSHO that's about the most insightful contribution to this topic!
Actually, in the good ol' days it used to be like that. But the system has softened up, too much.

Your (re-invented, pun!) proposal would actually solve the problem within a few years: Patent applications are either granted or rejected as filed.
So, when they don't fulfill the requirements of the local patent law respective patent convention, they must be are rejected outright. If there is an anticipatory document, rejected. No working embodiment described, rejected. If the application is done properly, no prior art available, description complete, then the patent is granted.
We would see an almost immediate jump in the quality of the application, as well as an almost immediate drop in filing numbers. And the industry could not even complain, except that the onus will be on the applicant/application instead of the patent office, to get the application in order.
I really, really don't see why this isn't been done. It would help very effectively, without extra cost to the public, without any further change of the law (convention). It would not break the patent system. By all means, we could - at least temporarily - leave software patents as allowable. Their numbers would simply take a quick, and decisive, downturn.

For those not quite in the know: Anything published before the filing/priority date is considered an anticipatory document. And all patent applications (not patents!) must be published, including the rejected ones. Plus, one's own documents can be cited against one's patent application. As a consequence, all rejected patent application would enter the public domain, without anyone, not even the original inventor, being able to re-file the application. This is, again IMHNSHO, the best self-regulatory method possible. The very moment you file an application, you better make sure, that it discloses the invention sufficiently, the claims are drafted adequately, and no anticipatory document is available. If you fail these, your invention becomes public knowledge after (currently) 18 month (time frame for publication requirement of all applications).
-> So you better think twice before filing too broad claims. Even if your invention is genuine, but you 'over'-claim the breadth, you lose it all.
If this is not an almost perfect self-regulation, there isn't any.

Re:Software patents?

[Qubit]

Software patents such as the one for public key cryptography follow in the tradition of the engineering patents.

Do you mean that for any given software patent "S," you could write up a pure-hardware patent H that was an implementation of S?

Notice that they do not prevent a business (or foundation, hobbyist, etc) from making a competitive offering,

Hmm...not sure I agree there. Software patents prevent interoperability and close off entire field of research or implementation to new players for 2 decades.

they simply claim an avenue of implementation which,

The words may be the same, but "avenue of implementation" means different things here.

Here's a comparison I like to use. Let's say that I invent a new corn shucking device "CleanEarz". It works faster and uses less energy than other devices used to shuck corn, so I expect that I can find a market for it. The cool thing is that while I have invented a better corn-shucker, people are free to try to create new mechanical corn shuckers themselves. For most people, we'd all agree that it's pretty much a certainty that:
- without infringing on my "CleanEarz" patents,
- another method could be found to shuck corn (it might be worse, but there's another method out there)

Now let's take a software patent that covers a video codec like H.264. Given the patents on H.264, would it be possible for you to write an independent implementation of an H.264 encoder without infringing on those patents?

Notwithstanding various bits of legal trickery (that wouldn't work in most case), the answer is a resounding no. We're talking about an algorithm + a general-purpose computer, so there's very little one can do to avoid infringement.

assuming that the patent examiners have done a good job, may not have been hit on for many years otherwise.

That sentence makes absolutely no sense to me. The patent examiners have nothing to do with what gets submitted. Either there's a nugget of a new, interesting idea in the patent submissions somewhere, or there isn't. Maybe the patent language will be too confusing for people to understand the idea, but as long as the patent filer has actually correctly described their machine, the idea is there. Patent examiners aren't magicians.

Contrast with business methods and merchandising patents, many of which seem to be the output of a bunch of bright people sitting around a conference table jabbering excitedly while hoping that some of their ideas are at least five minutes ahead of what someone else has filed.

Like software patents, I don't really understand how business method patents were supposed to help the general economy. It seems to me that in the free market you just want everyone running their businesses as efficiently as they can, and if one company finds a good way of doing business they can either keep it private (i.e. trade secrets), they can make it public (e.g. publish a whitepaper or something), or something in the middle.

When it comes down to it, businesses don't need software/b-method patents as encouragement to innovate. They'll do just fine as-is

We have to narrow "patentable subject matter"

[ciaran_o_riordan]

They're under-resourced, but increasing their resources won't solve the social and economic problem caused by the patents they grant on software. A lot of big patent holders are saying that the solution is to increase review standards, but how would that happen? How do you put clear limits on whether something described is sufficiently innovative, or sufficiently useful?

The only simple way to reduce the workload of the patent office is to cut certain fields right out of consideration. Start with software. Making the USPTO more efficient isn't our goal, but it's a happy coincidence that there's a solution to our problem that just so happens to solve a major USPTO problem.

And it's not just the USPTO. The European Patent Office has the same problems.

• United States Patent and Trademark Office
• USPTO 2010 consultation - deadline 27 sept - important!
• Raising examination standards won't fix much
• Software is too abstract, patent quality is bad

Re:We have to narrow "patentable subject matter"

[Znork]

The only simple way to reduce the workload of the patent office is to cut certain fields right out of consideration.

The only long term way to reduce the workload and balance the system is for the patent office to actually pay the cost of the patents. With a fixed budget limit on how much the system is allowed to cost the economy, the system would automatically balance itself; grant too many patents and each patent would pay out a pittance to the holder, grant too few and the payout per patent would be large, but limited to very few beneficiaries. The stakeholders themselves would have an interest in getting the balance right.

Without an actual price tag, for as long as the cost of the system is hidden simply as higher costs of products, there is no incentive to actually fix the system. Politicians won't have to defend a huge post in the budget (with significant funds of essentially taxpayer money going to foreign corporations), the patent office has no reason not to increase scope and lower standards (most of their 'customers' have no objection to getting more patents), and the ones paying for it all basically have no say.

A little honesty about how patents are actually financed would go a long way.

Re:We have to narrow "patentable subject matter"

[russotto]

How do you put clear limits on whether something described is sufficiently innovative, or sufficiently useful?

For innovation, start by relaxing the standards for prior art. At the very minimum, if a piece of prior art would infringe the patent if it were to have been invented later, the patent should be denied. None if this "if it differs from the prior art in some minor way, the prior art doesn't count".

Re:We have to narrow "patentable subject matter"

[ciaran_o_riordan]

You're still left with the problem of distinguishing between "minor" and "major" differences from prior art.

Dealing with something physical like a breaking system, you can make a certain quality of comparison. Not at all 100% reliable, but you can see if they look similar and if they have similar results.

Dealing with software, you're bunched. How do you decide if my method for transmitting objects between stateless compiler units is different from your method for exchanging stored values among non-volatile transformation classes? Would a search for prior art on one even find the other patent?

Re:We have to narrow "patentable subject matter"

[Grond]

The only simple way to reduce the workload of the patent office is to cut certain fields right out of consideration.

This is plainly false. For example, another simple way would be to substantially increase application fees, particularly for large corporations.

Furthermore, no one has yet put forward a legally workable definition of a 'software patent.' Any attempt to cut out software patents will likely lead to more litigation as applicants argue that their inventions don't qualify. The end result is a system that values style over substance as applicants invoke 'magic words' while ultimately claiming the same thing. (See, for example, current claims to 'systems' and 'computer readable media' designed to get around past attempts to prevent the claiming of algorithms).

Targeting software because it has become one of the most popular fields for patent applications is foolish. Software patents are common because software and software-related fields are a large and growing part of the economy, not because there's anything inherently odd about software patents. This anti-software-patent crusade makes as much sense as a 19th century crusade against mechanical device patents. Just think, the 19th century patent office could have saved so much time and effort if it just banned mechanical device patents! Nevermind that mechanical devices were an enormous part of the 19th century economy.

How do you put clear limits on whether something described is sufficiently innovative, or sufficiently useful?

That's the genius of the patent system. It puts extremely low bars on the requirement for innovation and usefulness and lets the market sort it out. If an invention isn't innovative or useful then it won't be of much value to the market, which tends to discourage patent applications and litigation. The goals of the Patent Office should be to perform a simple first pass at validity and to provide a legal record of what the applicant claimed and when. The rest should be sorted out in the market, in reexamination, and in the courts on an as-needed basis. To the extent patent litigation unfairly favors established players, then we can talk about things like fee-shifting, eliminating the presumption of validity, and other measures that even the playing field. Simply banning software patents is not the answer.

Re:We have to narrow "patentable subject matter"

[Theaetetus]

They're under-resourced, but increasing their resources won't solve the social and economic problem caused by the patents they grant on software. A lot of big patent holders are saying that the solution is to increase review standards, but how would that happen? How do you put clear limits on whether something described is sufficiently innovative, or sufficiently useful?

The only simple way to reduce the workload of the patent office is to cut certain fields right out of consideration. Start with software. Making the USPTO more efficient isn't our goal, but it's a happy coincidence that there's a solution to our problem that just so happens to solve a major USPTO problem.

You know, criminal cases have a backlog in the courts, too. Obviously, the way to fix this is to declare assault and battery no longer a crime.
Likewise, the civil court dockets are full. Let's no longer enforce contracts that are between only two people. That would reduce things.

No, this is insane. You can't look at a problem - the backlog in the PTO - and say that the solution is to remove rights from inventors. It so happens that you want to remove those rights anyway, but that doesn't mean it's a solution to the problem you pose. And why software? Pharmaceuticals make up half of the backlog... should we say that drugs aren't patentable subject matter anymore? Not because they're unpatentable subject matter, but because the PTO is too busy.

Frankly, no. If you want to narrow patentable subject matter, make the argument that you should narrow the subject matter. Don't try to shoehorn it in as a solution to the PTO being too busy.

Re:We have to narrow "patentable subject matter"

[0111 1110]

You know, criminal cases have a backlog in the courts, too. Obviously, the way to fix this is to declare assault and battery no longer a crime.

You picked a bad example. How about legalizing victimless crimes, like drug possession? Russia just did something similar. They didn't legalize drugs per se, but instead of imprisoning drug users they just fine them each time they are caught with them. Even small time drug dealers are just fined. If we were to do something similar our overcrowded jails would be half empty.

under-resourced

[Joce640k]

I've got a sister in law who works at a patent office in Germany. She tells me they make obscene amounts of money.

If they're "under-resourced" it's because they can't build luxury office buildings fast enough to keep up with industry demand.

Re:under-resourced

[Antique Geekmeister]

That's in Germany. There are no software patents in Europe, and Germans are (traditionally) much less interested in lawsuits than US citizens and corporations. I'd also expect German patent grants to actually be valid, rather than relying on lengthy court processes to refute patents that never should have been granted due to prior art or attempting to patent laws of nature.

None of these conditions apply in the USA. It is actually to the advantage of some large companies and their lobbying organizations to keep the patent office overwhelmed and confused: they can assemble portolios of defensive patents to protect their interests, and apply those portfolios at whim against smaller, more creative, developers or businesses that haven't already invested in manufacturing or development or sales of an older product line.

Re:under-resourced

[Wolfbone]

There are no software patents in Europe

FSVO "no" of around 50,000 and rising?

There are only "no software patents" in Europe in the sense in which a "software patent" is not really a software patent as such* in Europe (it's really a patent for an invention implemented on computers!). This definitional trick, infamously, was the means the EPO, (then) UKPO, and other interested parties used in order to deceive people during the C.I.I. (software patent!) Directive war. I'm disappointed to see people still falling for this absurd and absurdly blatant** lie after all the hard work done by the FFII and others.

* /snigger.
** The EPO database is online, its many software patents in plain view; its "Guidelines for Examiners" and various TBoA decisions - all also available online - couldn't be clearer; a great deal has been written about this issue online, in the press, in the economics and patent research literature etc.

Re:under-resourced

[Antique Geekmeister]

Oh, dear. That's not good. I thought it was an ongoing issue of US and corporate lobbying to _allow_ software patents, and it hadn't quite worked yet. I see from checking Wikipedia that your claim is substantially correct: it's merely a matter of degree of what can and cannot be software patented there.

Re:under-resourced

[Wolfbone]

Yeah - they'd already been granting software patents and just wanted to ratify that rather dodgy practise* with the C.I.I. Directive. When confronted by the strong opposition, instead of just making their case in an honest manner, bizarrely they tried to make out that they didn't grant software patents and never had and that the Directive would merely uphold that (fictitious) practise. Some MEPs even fell for it but then SAP lost the plot and came out with a big pro-Directive, pro-software patent advert in a publication widely read by MEPs!

* Dodgy because of the apparent specific exclusion of software from patentable subject matter in the EPC - a statutory exclusion which they'd earlier tried and failed to have deleted.

Re:under-resourced

[Joce640k]

You can patent "algorithms" if they're worthy of patent protection. A good example is mp3 encoding - invented and patented in Germany.

Allowing a patent for something like mp3 is fair enough IMHO, it seems to pass the basic tests for patentability.

PS: My SIL tells me that, yes, the German patent office cares about patent quality - they actively try to reject junk.

Nothing personal, but...

[Qubit]

I have 3 fairly recent patents (one hardware and two software)

Do you have a reasonable expectation that the software patents will only be used for defensive purposes?

(If not, do you believe that software patents are a good idea?)

Re:Nothing personal, but...

[Dolphinzilla]

We do actually build products that use the software process we have patented - but there are several other companies that also use techniques that could be considered infringement. I suspect that some day if it was tactically advantageous my company could seek licensing fees - The software patents that I am named on are incredibly well written and there are some big companies that we could take to task -

Re:Nothing personal, but...

[Dolphinzilla]

I believe that software patents on algorithms are a good idea - I think that a lot of software patents are bogus in that they are generalized and obvious. Like single-click purchasing or whatever it was called - that is just silly. But a patent on a new type of sorting algorithm or image processing algorithm could represent significant time and effort and IR&D dollars and should be protected

Re:Nothing personal, but...

[tenchikaibyaku]

I'm just a bit curious here, but have these big companies you are speaking of copied your patented techniques by looking at your product or your patent application, or do you think that they reasonably could have invented them independently?

Re:Nothing personal, but...

[A beautiful mind]

Excellent, so you're patenting not even software, but mathematics! Can this get even more broken? Of course!

Re:Nothing personal, but...

[TheTurtlesMoves]

This is BS. Because if i also put in R&D dollars and my own blood and sweet and come up with the same or similar solution, i can't benefit from my hard work because someone else also thought of it and paid lawyers.

If it was about rewarding hard work, or R&D then independent discovery would be a valid defense. Its not.

Re:Nothing personal, but...

[Teancum]

Would the creation of a novel sorting algorithm (presumably something significantly faster than a Quicksort) really help in terms of attracting attention to your product, or would it be better to either publish that algorithm with the ACM Journal (giving you guys prestige and helping with recruiting new employees to you're company.... saying "come work for us where we invent cool stuff") or simply keep it as a trade secret (giving you a competitive advantage).

The largest problem I have with software patents is the business of prior art, where algorithms are patented that have already been invented or are trivial constructs that almost any software developer would have created given the circumstance. The "1-click purchase" button is an example of that.

BTW, I find that it isn't just software patents that are overly generalized but nearly all patents. This is also by design. In theory, the proper role of a patent is to record knowledge for future generations that would otherwise be lost. There are several devices and processes that we know about from history that simply weren't recorded in terms of how they were put together... or in the case of a metallurgical process what the steps were for making the items. A Stradivarius Violin is a prime example, and those are even still in use, as is something like a Damascus Steel. The problem with this philosophy is that I fail to see how the information given in a patent application can ever possibly be used in most cases to recreate the process.... even for somebody "skilled in the technology". I've looked at several software patents over the years and for many I would be at a loss in terms of how to recreate the algorithm that is being described. At best the patent description would only cover a class of algorithms like sort algorithms in general, not something specific like a Quicksort or Bubblesort.

Re:Nothing personal, but...

[Qubit]

I think that a lot of software patents are bogus in that they are generalized and obvious.

I agree that a lot of software patents do seem very obvious! Figuring out what should be patentable and what shouldn't be patentable can be a very difficult question for legislators (and then for the lawyers, patent office, and courts to interpret).

What kind of metric would you suggest that the patent office and courts use to separate the too-generalized and too-obvious patents from those that should be patent-eligible?

Like single-click purchasing or whatever it was called - that is just silly.

Right, that's Amazon/Bezos's "One click" patent.

But a patent on a new type of sorting algorithm or image processing algorithm could represent significant time and effort and IR&D dollars and should be protected

Do you think that software patents produce an environment of greater innovation than an environment without software patents?

I mean, I assume that there's more to your argument than that. We don't just go around granting temporary monopolies to people because we feel like it. The whole idea behind patents is that society cordons-off a little space for a person or company for the purpose of promoting the progress of science and the useful arts.

Personally I'm not really in favor of software patents, and one of the primary reasons is that I'm not sufficiently convinced that the benefits that they provide for society are sufficient to justify the inconvenience of a monopoly (even a time-limited one).

Some people have suggested that software patents should have a shorter lifetime than other patents, say one of 3-4 years. Such proposals aren't perfect, but I do find them interesting as the fact that such ideas are even discussed indicates that people recognize that software patents are really different from, say, hardware patents.

What do you think about the idea of shortening the lifetime of software patents?

Re:Nothing personal, but...

[Anonymous Coward]

You only think you could take them to task. If you actually tried they would point out the hundreds of _their_ patents that you were violating, by the end you'd likely be happy if they didn't shut you down.

This is how the current patent system fails in the software realm, patents have become a kind of offensive/defensive resource in a twisted RTS.

Re:Nothing personal, but...

[Anonymous Coward]

They probably "invented" it after they saw that his company could do it, ie they saw the market opening and the technology follows "naturally" from seeing someone else do it. But that "market opening" is probably a completely fresh idea that the other companies wouldn't have ever pursued by themselves. In this sense, the fact that ONCE you see the thing done, you can "invent" the same thing doesn't mean that the invention shouldn't be patentable. For example, we're in the nineteenth century and you see someone using a telephone. If you know about electricity, maybe you can "invent" the same thing just using your previous knowledge. But it is "tricky" and just because you end up with the same invention doesn't mean it wasn't genuinely new or patentable.

Re:Nothing personal, but...

[TheLink]

3-4 years of protection after 6 years "pending" in the patent office.

I think the supposed benefits are not worth the already visible costs to society.

Companies are just using them as anticompetitive barriers or as a way to parasite off other companies actually doing stuff.

Ideas really are a dime a dozen. I can think of lots of ideas.

Re:Nothing personal, but...

[Anonymous Coward]

Patents on algorithms are a great idea! Someone should have said that to Dijkstra when he invented the shortest path algorithm or to Hoare when he invented the quicksort. Without a shadow of a doubt the world would be much better and fair if everybody patented their algorithms and treated their knowledge as a commercial thing that has to be protected by law.

Re:Nothing personal, but...

[Dolphinzilla]

what we patented was pretty ground breaking back before 2000 when we started working on the idea (out of need) it even seems "obvious" to me now :-)

http://www.google.com/patents?id=fQOZAAAAEBAJ&printsec=abstract&zoom=4#v=onepage&q&f=false

I include the link to one of our patents(for some reason Google Patents still has it as an Application - but it has been awarded)

If you read it, the companies and applications doing this today are somewhat obvious

Re:Nothing personal, but...

[bidule]

Insightful? What a bunch of crock!

How is it insightful to re-invent the wheel?

Where's the insightful litmus test on how to distinguish between hard work and lazy copy?

Not a word about all those master-apprentice trade secrets that got lost over the ages, nor about how the patent race forces you to get results now instead of sitting on your idea for 5 years. Yes, patent don't work as they should, but if you want to fix them come up with solutions to those problems rather than living in Denialand.

Nothing but a wind of fallacies to please the crowd.

Re:Nothing personal, but...

[cfc-12]

That pretty much sums up the problem though, doesn't it? At my work we regularly work on ideas that seem groundbreaking, but we generally find that even if nobody else happens to have had the same ideas yet, it's only a matter of time before they do.

So if it's an idea that everybody else is going to have anyway given enough time, why should the first person to think of it gain the ability to put a roadblock in front of everyone else who thinks of it?

Re:Nothing personal, but...

[udippel]

What was granted to you was:

Claim 1. A system for displaying geographic information comprising: an input device for selecting a geographic area of interest; a display device for displaying geographic information corresponding to at least a portion of the selected geographic area, wherein the geographic information may be displayed at different resolutions and comprises photographic images, radar images, radio transmission information, cell phone transmission information, time sequenced images, ground moving target information, air moving target information, maritime moving target information, red or blue force identification or potential hazard areas; and a geographic information data storage device communicating with the input device and the display device, wherein the geographic information data storage device stores information relating to the selected geographic area at different times, and the display device may sequentially display the geographic information relating to the same position in the selected geographic area from the different times.

What you had asked for was:

Claim 1. A system for displaying geographic information comprising: an input device for selecting a geographic area of interest; and a display device for displaying geographic information corresponding to at least a portion of the selected geographic area, wherein the geographic information may be displayed at different resolutions.

This is a great example of what is wrong with the system. In the old Belgian system, it would have been simply rejected, btw. And that's most adequate, as far as me, an ex-patent examiner is concerned.
Look, we get this nonsense of - sorry - not incredibly well written stuff, where the applications claim The World. It has a filing date of March 2005. And it isn't all too difficult to throw a number of prior art at the applicant. But we can't simply kick the applicants' buttocks any longer, unfortunately. If we want to make our job easy, actually the easiest, we still need to do the search, take all relevant documents together, and propose something to the applicant that hasn't been anticipated. No, I haven't taken the time to look up what that examiner did. I am just saying, that's the easiest way for an examiner to handle something like that. But it is all wrong, it is actually helping the applicant with a lousy application; helping the applicant - sort of - to rewrite the claims in a manner that the examiner could grant. I really never understood why we have to do that. If we could only decide on the submitted application, the patent system would be in a much better state, because the applicant would have to do a proper research, and then draft the application accordingly, and accordingly narrow. It is like me asking the local council for a building permit in a reserved area. Instead of turning it down, town hall would have to try to find another, unencumbered, place for me. Crazy, ain't it? Why would a patent examiner have to haggle with the applicant what could be granted instead??

Listen, and don't take this personal, please, your application deserved one thing, and only one thing: outright rejection. What was granted, I think, looks okay to me. But that's what your patent attorney was supposed to do, in the first place, if I had any say.

Re:Nothing personal, but...

[RAMMS EIN]

``How is it insightful to re-invent the wheel?''

It's just as insightful as the original invention.

``Where's the insightful litmus test on how to distinguish between hard work and lazy copy?''

I haven't seen any such test. That means that it cannot be ruled out that someone actually did the hard work, rather than the lazy copy. Yet it's worth nothing, because they can't use the fruit of their labor, because someone else has been granted a monopoly on it.

Arguably, doing hard work and then finding out you aren't allowed to use it could have been avoided by having read the patent beforehand. But how well does that work in practice? Do you know all patents? Will you be able to, before you have put significant effort in working out your idea, finding out with certainty whether there is or isn't a patent on what your eventual method will be? And don't forget the risk in doing your patent homework: if you are later found to infringe on one of the patents you had examined, you face higher fines than if you hadn't seen the patent.

``Not a word about all those master-apprentice trade secrets that got lost over the ages, nor about how the patent race forces you to get results now instead of sitting on your idea for 5 years.''

Fair enough, let's consider the dark sides of not having patents. Not that I am convinced that these two things are necessary consequences of not getting a patent, but I concede that getting a patent now means the invention gets documented now, and that that is a Good Thing.

On the other hand, since we are about getting the complete picture, let's also consider that patents favor large corporations, who have the resources to obtain patents and assert them, versus small fish who run a very real risk of being bankrupted by a patent suit. Also fun: bullying your competitor with patents you have, even if you aren't sure your competitor is infringing on them. Maybe they will be found to infringe. Or maybe they will throw in the towel without even fighting the legal battle. Oh, did I mention that all the patent application and litigation going about makes the industry less efficient?

``Yes, patent don't work as they should, but if you want to fix them come up with solutions to those problems rather than living in Denialand.''

I think people are working to come up with solutions. Abolishing patents is one possibility, but certainly not the only one I've seen mentioned.

I like the word "Denialand", but I think you're going a bit over the top in your post. You seem to suggest that things will go horribly, horribly wrong if we abolish patents. I am not convinced. Since the thread was about patents on algorithms, I'll stick to those. As far as I can tell, such patents have only relatively recently come to be actively asserted. If you can name many cases about patents algorithms from before the 1990s, you know more than I. But, in any case, that's only in the USA. And only in, let's say, the last two decades. Algorithms are much older than that. I would go so far as to say that most of the famous algorithms you may know from your algorithms textbook were invented long before anyone thought about software patents. And, if we see algorithms as a branch of mathematics ... mathematics has existed for at least a few thousand years before patents existed, and seems to me to have been doing just fine without patents.

Conversely, what I have seen from software patents looks more like "we don't like that competitor, launch the nukes!!" than like something that actually furthers innovation. What few court cases I know of all look to me like cases where, if there is infringement at all, it seems very likely the result of independent discovery rather than willful implementation after having read the patent. Not to mention the many vague assertions that "competitor X infringes on N of our patents", without specifying any of the patents in question. That's FUD being used to harm the competition.

Bad things will happen when we abolish patents? I only see bad things happening because of patents. If I'm really in Denialand, please help me get out of here. I don't want to feel bad about patents; I want to see the light and realize that, despite their flaws, we're really better off with them.

Re:Nothing personal, but...

[RAMMS EIN]

``At best the patent description would only cover a class of algorithms like sort algorithms in general, not something specific like a Quicksort or Bubblesort.''

Now, that's a very serious problem, because, if the patent doesn't show how to actually arrive at the solution, what use is it to the world? I thought patents were explicitly required to describe a working solution for exactly that reason. But then again, I am not actually familiar with US patent law.

Re:Nothing personal, but...

[Bitmanhome]

I skimmed the patent, and it looks like a standard troll patent. I see "may", "various", "and the like", and the classic "display device". Lots of ideas, but no actual technology.

If this is a typical software patent, I see the problem is much worse than I feared.

Re:Nothing personal, but...

[queazocotal]

Diddn't terraserver do exactly this?
http://en.wikipedia.org/wiki/Terraserver.com

'A system for displaying geographic information comprising: an input device for selecting a geographic area of interest; a display device for displaying geographic information corresponding to at least a portion of the selected geographic area, w... , and the display device may sequentially display the geographic information relating to the same position in the selected geographic area from the different times.'

I'm pretty sure I recall that in ~2000 it had - in some places - a slider to select amongst times.
And yes, IMO this is entirely what's wrong with software patents.

This is not a 'I invented something clever', but a 'I had a problem, I solved it in the obvious way, and I patented it'.

Re:Nothing personal, but...

[0111 1110]

If you aren't bothering to defend your original idea (give the man a cookie!) then what was the point of applying for the protection in the first place? Just in case someone else stumbled onto the same obvious idea? Sorry, but I do think your idea was pretty obvious. Actually implementing it would certainly represent progress, but trying to prevent others from doing so? For some reason your company hasn't done that. What if patents were like trademarks, where you lose them if you don't defend them?

Re:Nothing personal, but...

[Dolphinzilla]

what that represented was a patent on something we DID not something we thought about doing - a lot of engineers expended a lot of time and money to actually build the thing and deploy it - and after we were done someone said, hey you should patent that - I don't think it is a troll at all because it was a real an invention and done to solve a real world problem

Re:Nothing personal, but...

[Dolphinzilla]

And what makes you think it was Microsoft's idea ?
the original Keyhole software (that became Google Earth) is more applicable but was developed in the classified DoD world so it was never patented

Re:Nothing personal, but...

[Anonymous Coward]

Certainly publishing in ACM is one option.

But, ignoring how near optimal quicksort is, if you really did invent a significantly faster sorting algorithm then it is bound to have commercial uses. Patent it and sell patent licenses does seem a reasonable business model - companies get a better sort than quicksort and you get some nice return on your research.

Re:Nothing personal, but...

[bidule]

I like the word "Denialand", but I think you're going a bit over the top in your post. You seem to suggest that things will go horribly, horribly wrong if we abolish patents. I am not convinced. Since the thread was about patents on algorithms, I'll stick to those.

There are no "my own blood and sweet" [sic] in a lazy 5-liner. It is nothing but inane party line spouting. Moderating this up to 5 *is* over the top.

I utterly against software patents, but both patents and copyrights were reasonable solutions at the time they were introduced a few century ago. Denying their usefulness shows a profound lack of insight.

Re:Nothing personal, but...

[udippel]

This is not a 'I invented something clever', but a 'I had a problem, I solved it in the obvious way, and I patented it'.

Spot on. Read Dolphinzilla's rebuttal further up. They hit a problem, spent a lot of money and man-months and whatnot to solve it. That maybe true, even. Though it doesn't at all warrant that a patent be granted.
As I wrote, the application was seriously flawed, more of a patent troll, actually. In the end, by stacking uncountable items into claim 1, it was finally granted.

Flawed is the system we have, and entirely so.

Re:Nothing personal, but...

[Anonymous Coward]

what we patented was pretty ground breaking back before 2000 when we started working on the idea (out of need) it even seems "obvious" to me now :-)

http://www.google.com/patents?id=fQOZAAAAEBAJ&printsec=abstract&zoom=4#v=onepage&q&f=false

I include the link to one of our patents(for some reason Google Patents still has it as an Application - but it has been awarded)

If you read it, the companies and applications doing this today are somewhat obvious

This is exactly the type of crap that needs to be thrown on the floor, stabbed, burnt, urinated upon, stabbed and burnt again, defecated upon, stabbed, buried, and then lit on fire one last time for good measure.

It doesn't describe anything! That isn't the result of any work, that's the brainstorm you have at 3am... you know, the starting point, not the finishing point. Where's the code? Hell, even some specific implementation details would be a start. What algorithms, methods, techniques, etc. are being used to set the bounding area, to control the interactions, etc.

This is almost as bad as handing the applicant a blank piece of paper and saying "It's approved, just fill out whatever you want later".

Software patents?

[LatencyKills]

Don't get me wrong, I'm completely against software patents, but I'm way more offended by "business method" patents. And patents on something that someone did a hundred years ago, only now someone adds the line "on a computer" and suddenly that's a new patentable event.

Either whack software patents or force disclosure

[putaro]

If I had my way, software patents would be simply disallowed. If they're not going to be disallowed, then the number needs to be reduced AND they need to start showing some benefit to society. Right now, you can patent things that aren't even close to being implemented, and if you patent something that has been implemented you get to keep the copyright on the code as well.

Software patents should require full disclosure of the source code AND that code should not be eligible for copyright. That should slow down the number of patents filed.

Re:Slapping machine

[miknix]

And my personal favorite:
-A handshake machine,

?? I prefer the slapping machine:
http://www.youtube.com/watch?v=8chY78oBcWM (move to 3:50)

more illness from man's chemicals than nature

[Anonymous Coward]

it looks that way. now we're being 'volunteered'/scared into being 'treated' (like cattle?). as the glowbull warmongering corepirate nazi illuminati military/industrial(pharmaceutical/gas pain etc...) blight grows, the population will decrease disproportionately, in total opposition to our intended/mandated purpose here.

Time isn't really an issue

[Anonymous Coward]

'As it is, by the time companies get a software patent, there's little value to them because, after six years, the industry has already moved on."

This is completely wrong. The longer it takes with no one noticing, the more time for people to be infringing and the more money you can extract. The most valuable patents are the ones that are so fundamental that _everybody_ infringes. If you can avoid having prior art invalidate it, you can print money.

No one really cares how long the process takes, the incentives are not set up that way.

Re:Time isn't really an issue

[JSBiff]

Also, for something which is mostly 'new', it takes about 6 years, even in the fast-moving software world, for it to become widely, internationally adopted. I'm sure there are exceptions, but when people start doing something, 5-6 years seems to be the 'uptake' period. At the end of which, you might have hundreds of millions or even billions of people 'infringing' the patent. If patents were granted faster, people might avoid the patents, and you'd never get the level of 'infringment' (I put that in quotes, because lots of patents are rather silly, of course). The very fact that people filing for patent protection can wait SO LONG to disclose and enforce the patents means that the lawsuits hit too late to change course easily.

Mod me down as you wish, but...

[WhitetailKitten]

Duh.

Ideas are a dime a dozen

[mangu]

if someone had the idea first then why shouldn't they get some benefit from it ?

Because phrases like

"Ideas are a dime a dozen. People who implement them are priceless" - Mary Kay Ash

"Invention is one per cent inspiration and ninety nine per cent perspiration" - Thomas Edison

sound better than "first come first served".

Apple patent blows my mind

[rxan]

Here's why the patent system is broken.

Apple has a patent application for arranging music information (read: any information) into different shapes. http://www.patentlyapple.com/patently-apple/2010/09/apple-provides-us-with-a-peek-at-spirals-a-new-itunes-ui-feature.html. They describe spirals, squares, rectangles, a helix from the side. Even a map of the USA. But why stop there? You might as well just patent information and pictures arranged into any pleasing geometric or recognizable form! Abstract goastee arrangment? Sure! Lady Gaga's face? Why not! Patented granted!

People can take things that are completely abstract and patent the whole net of ideas. Not only are patents too abstract, they usually aren't novel. Like this Apple one. It's sick.

Here's an idea. Cut the patents and rely on copyright after the fact. Or would that require that people actually do work before getting a reward?

Little value?

[Philodoxx]

As it is, by the time companies get a software patent, there's little value to them because, after six years, the industry has already moved on.

As messed up as it is, the current system creates more value for patent trolls. If it takes six years to get my patent approved, that's six years "infringing" technology getting baked into competing products.

"Industry has moved on"

[Arancaytar]

To the contrary: After six years, there is a good chance that what you are patenting has become so painfully obvious and commonplace that every software uses it. You just need to file claims against every software company in existence and then rake in the money.

Why are people here so against software patents?

[Nailer235]

To be against software patents is akin to saying that there's no innovation in the field of software, or that if there is innovation it doesn't need to be protected. Without software patents, there's nothing to stop a big company, or anyone for that matter, from stealing a small developer's idea. Some of them absolutely legitimate and innovative. In hindsight, we now think that the inventions were clear as day, when at the time they really may have been something revolutionary. People here say that software patents need to be abolished. Why? I understand how some people think that too many of these patents were obvious and are now being used as tools of extortion. Fine, have more stringent standards for software patents instead of abolishing them. I personally believe that innovation happens rapidly for emerging fields, and consequently the obviousness requirement needs to be much more hard-pressed.

I see a solution to the employment problem here

[Red_Chaos1]

Seriously. Start hiring, teachers and "readers" alike. Set an appropriate threshold for level of English language proficiency, both written and spoken. Train. Nothing stimulates the economy like jobs, and this could help speed things upa bit and bring down the backlog.

That and knocking it off with the filing/approval of ridiculous patents.

Not just software patents.

[anguirus.x]

Jesus christ, this is retarded. Just reject 729,973 of the backlogged patents based on prior art. It's just that simple. They could save a HUGE amount of time by allowing for paperwork (regarding the reasons for rejection) to be issued after the decision is made. Yes, now you've just got a different kind of backlog, but at least it's not keeping the USPTO from issuing decisions on patents.

A better patent process?

[Broofa]

I'm just stunned that the PTO's goal is to get a "first action" notice time down to within 10 months? WTF? Why isn't that goal "24 hours"?

There is clearly something fundamentally broken with the process. And that "something" is all the work required to gain patent status. What is needed is a process that doesn't require all this back-and-forth to get a patent but, rather, defers that work until there is a clear and obvious need for it to be done.

Instead of patenting ideas, why not just "register" them by filing a form that says, "So-and-so claims to have invented this-and-that on such-and-such date." This would reserve the right to pursue legal action against an infringer at some later date, but no further action is required or taken by the PTO. For example ...

- It's up to you to educate yourself on which patent ideas are defensable in a court room.
- PTO charges $100 to register your "idea". The fee is just to avoid massive spamming. You're notified immediately that it's been accepted.
- Once registered, your idea is protected for 14-20 years from the date of filing, just like today.
- If and when you ever choose to enforce your patent through legal means, you pay a "substantial" fee ($1,000? $10K? $100K?) to have the PTO provide a patent "determination". The determination pays for the PTO to evaluate the validity of your idea and provide a summary recommendation to the court as to how to proceed. In effect, the PTO acts as a "professional witness" in legal patent battles, and nothing more.
- Judgement of actual patent validity is made in the courtroom (where it's already made, in practice).

This process ...
- makes the patent system more approachable to your average lay-person.
- eliminates 99% of the workload that's currently burying the PTO
- lets the PTO focus on what they do best - analyzing patent quality - where and when those efforts are genuinly needed
- cuts the PTO action time from years down to essentially zero
- eliminates much of the abuse of patents (patent "registrations" are basically meaningless until you get into a court room).

I'm sure there are plenty of reasons for why we don't operate this way though, right? So what are they?

My $.02 worth.

Re:A better patent process?

[Dachannien]

If the backlog were eliminated, you wouldn't know how many employees to retain, because it would be based entirely on the number of filings you got that day. Having a backlog means that you can keep 6000 examiners on staff and not worry about having to lay them off because you ran out of work for them to do.

Also, the reason we have a patent examination system rather than a patent registration system with examination-upon-litigation is because (a) people would register claims of ridiculous scope and then assert them out-of-court against other people by demanding royalties and threatening to sue, stifling innovation; and (b) patents have value in terms of encouraging venture capital investment, employment, and commercialization, and this value would be eliminated without some up-front checks for validity.

Re:A better patent process?

[Ccomp5950]

do (process can be abused);
Abuse it;
while

Re:A better patent process?

[RAMMS EIN]

I think your idea is worth rather more than $.02.

Of course, the devil is in the details, so let's see people shoot holes in it and see if we can improve it. I'll start:

I think $100 is too low. I reckon you still get massive spamming that way. Perhaps $1000 is better. Perhaps it needs to be even more. Perhaps that should depend on the industry (oh dear, here we go introducing complexity already). Certainly it needs to be inflation-adjusted somehow.

Secondly, once you register the idea, it's public, right? How does that compare to the current system? What are the advantages and disadvantages?

Thirdly, I propose a low barrier to entry process for registering claimed prior art. Once an idea has been registered, allow interested parties to file evidence that shows the idea had already been implemented elsewhere. When the time comes to review the idea for patentability, at least some claims of prior art will already be on file, expediting the process. Here, too, there needs to be a mechanism to prevent spamming - otherwise, I could cause a denial of service attack against my competitor's patent claim by swamping it with prior art claims.

There, my EUR 0.02.

Re:A better patent process?

[0111 1110]

You may want to patent this idea in case someone steals it from you. Stealing your hard earned (you had to think) intellectual property is a serious crime and should be treated as such.

Crowd Sourcing

[Manip]

What I never understood is why the patent office doesn't implement some kind of crowd sourcing? I mean patents are public goods so instead of having the patent office review them, why not just stick them on a web-site and ask the public and industry to pick holes in them? And then the patent office only have to examine the ones which are controversial.

Re:Crowd Sourcing

[eyenot]

I can project various logical failures:

x. Public at-large will be exposed to the details of the patented 'device' and how it works before it's marketed, decreasing a lot of the potential for ambush and other elements of surprise often used in marketing new products on consumers. If people are already familiar with it they tend to have all sorts of second-thoughts before purchasing, whereas if it's "NEW!" people feel aggravated to obtain it, on impulse. Marketers and their client companies would not want it to be public and would continually fight to make it private, again. They would ultimately win because the public at-large isn't paying for the service, the agencies applying for the patents are. Reciprocation, the public wouldn't want to have to pay in order to be part of the process, and if you made people pay for it anyway, it would lessen the effect and make the panel of judges (so to speak) exclusive.

x. Public at-large would use the details to manufacture their own products and never have to buy from the market in the first place. You might say "why doesn't this happen already" but it does, on some level, just on behalf of those who actually carry the technical know-how (and have access to the tools, machines, and materials) to get it done. For instance, a friend of mine is using his own hydrogen source because he bought the platinum needed to do it. Not everybody will be doing that. But this is largely because people aren't exposed to the concepts behind the products. If people are regularly exposed to the concepts at the very point of conception, they're going to be more savvy and more inclined to just make their own. This leads back to the above: it's more marketable if nobody had any idea it was coming until it was ready to market.

x. Part of the above, some people would meet the in-between demand by manufacturing new devices for others who can't do it. This would probably be some kind of breach of patent or whatever, but usually people aren't getting caught. Suddenly they would be, because people would care, because they're part of this big network of eyeballs, and if anything happens when you suddenly empower a bunch of people, a large segment of them, socially inept, semi-retarded, or not, become litle Private Eyeballs and start snitching. So the little machine shop that wants to turn out half a dozen of the new engine or whatever ends up busted if anybody mentions anything about it at all to anyone, which is also inevitable, you go to the bar and you tell a pal or whatever. So all kinds of bad shit will happen, out of the same effect that creates voluntary police at Wikipedia who have no interest in the articles whatsoever but show up and police the fuck out of them anyway.

The whole idea is awesome, but it'll lead to total failure. What I would have to logically argue, then, is that patenting itself, as a process or a function, is a total failure and should be thrown out. It's doing more harm than good to the economy, to the government, to the public, to the Constitution, all of it. Just toss it out, forget about it, find some other more ingenius way that actually involves one's own skills and abilities to capitalise on something. If you can't, you can't, but at least you'll always be able to make the local profit. And look, Edison patented all of Tesla's work as his own, so how gr3at can patenting actually be?

Re:Crowd Sourcing

[TheVelvetFlamebait]

What I never understood is why the patent office doesn't implement some kind of crowd sourcing?

I suspect the main reason is sluggish and conservative government bureaucracy, but also crowd sourcing could also reduce the fairness and neutrality in the system. For example, if /.ers had the power to block patents, do you think Sony or Microsoft would ever get a patent again?

Re:Crowd Sourcing

[VanessaE]

x. Public at-large will be exposed to the details of the patented 'device' and how it works before it's marketed,

And you fail there, because that's one of the requirements of a patent in the first place. The details of the product - how it is made, what makes it work, indeed how to duplicate it in its entirety, expressed in terms familiar to anyone who is competent in the field in question - are supposed to be part of the patent. A company could, of course, market a product before the patent goes through (and many do this), but for something sufficiently unique, it would be suicide if it's also easy to copy.

x. Public at-large would use the details to manufacture their own products and never have to buy from the market in the first place.

And someone can already do this now with the existing patent system, except that the "public at large" doesn't actually have this capacity. A few large manufacturers in any given field could, but as broken as it is, we at least have our regular legal system to handle that. In the meantime, we already have places like China that clone everything anyway, and that ain't changing anytime soon.

Until every Jane and Joe has a Star Trek-esque replicator in their house, your argument is unwarranted (if it ever does happen, then we just have to deal with supplying raw materials, which need no extra protection, and replication data, which can be protected sufficiently via the copyright system).

x. Part of the above, some people would meet the in-between demand by manufacturing new devices for others who can't do it.

And this differs from the normal process of manufacturing something, how? There are many businesses out there where one entity designs something, a second entity markets it, a third handles the sales, and a fourth entity handles the actual manufacturing of the product, even within the same company.

Now, all of that said, I don't think crowd sourcing is the right way to go either, if only because the "crowd" isn't a particularly good way to get information at times (Wikipedia is a good example of that). Rather, as others have suggested, the USPTO needs to start forbidding software patents, patents on business methods, anything that is just plain silly (others here have provided good examples, such as the mannequin-based "handshake machine"), and anything that does not include with it a complete, working prototype, which is already a requirement of the existing system (and is part of why, for example, one cannot patent a perpetual motion machine).

Only then will this crap end.

Re:Crowd Sourcing

[swilver]

...what is this magic world you live in where people do other people's work for free because it was posted on a website?

Re:Why are people here so against software patents

[Anonymous Coward]

To be against software patents is akin to saying that there's no innovation in the field of software, or that if there is innovation it doesn't need to be protected. Without software patents, there's nothing to stop a big company, or anyone for that matter, from stealing a small developer's idea. Some of them absolutely legitimate and innovative. In hindsight, we now think that the inventions were clear as day, when at the time they really may have been something revolutionary.

Patents are supposed to be source code for the object you are patenting. You patent a new kind of cooling system then you tell how it works, tell what needs to be done to make one, and show most of the plans on how to build one. But software patents are just abstract ramblings of a lawyer that has an engineering degree.

Six years was too slow for Atari too

[jewishbaconzombies]

I recall a noted incident from Nolan Bushnell after he finally got a patent for Pong - long after everyone had cloned the bejeezus out of it, and the coin-op industry had long moved on to other games in the 70s. After finding out he'd been granted it, he tossed it over his shoulder. Now if you're Adobe, and are pushing Photoshop and Illustrator for 20 and 23 years respectively, then I can sympathize, but for me, software has always been a matter of copyright law - not patent. Given the fact copyrights (thanks to Disney and Senator Bono) have massive shelf-life, I can't fathom why they're clogging up the works with patents (unless there's a damage-award scenario I'm not getting).

But why though? What's the consequences?

[Steeltoe]

but in all "fairness" if someone had the idea first then why shouldn't they get some benefit from it ?

Because it isn't "fair", whatever that should mean? Neither is it supposed to be the reason for the patent system in the first place.

The test for non-obviousness was supposed to make patents innovative beyond mere ideas, ie. full documentation of implementations which otherwise would be lost in trade secrets and obfuscation. However, non-obviousness tests are seldom used for anything else than delay a certain application, until it is reworded enough to be granted. This makes sense to the patent office and state, which earns Big Money from granting a mind-numbing number of patents each year. It also makes sense for huge mega-corporations, because they get defensive and offensive patent portfolios to squash lesser competitors with. It even makes incredible sense for patent-trolls, as they can push/buy up patents from dying companies, and extort money, without risking anything themselves, as they are producing nothing of value themselves, only sue successful businesses through courts out of the remains of dying businesses..

This all works splendidly on the cost of everyone else: inventors who are restricted in arbitrary fashion and customers who are forced to buy inferior products at exessive prices. It makes any business a risky operation, because at any time, you can be sued into oblivion, despite otherwise successes in the marketplace. Thus, the state monopoly-granted patent system works against the free market.

If it was "fair", then if someone has an idea, they shouldn't be sued into oblivion when implementing their idea as a business or "free software", just because someone "thought of it first", which is not even proven beyond any reasonable doubt. If everyone gets the same idea, or if the patent is just a physical process translated into the world of computers and software, then it shouldn't be patentable at all, since it is an obvious invention, a natural evolution of software to scratch an obvious itch.

Of course, only big corporations have the money to build a huge patent portfolio, and then use it as a defense mechanism, or even aggressively attack GPL, BSD, open source and free software. You can bet your sorry ass, Mozilla Firefox, Linux and most complex software out there, already violates hundreds of patents. It's just because of bad PR, the dogs have been kept in leash, but we remember SCO, and it is not far-fetched some dying corporation with real ownership of patents, could go for licenses instead of competing in the marketplace.

Just because nobody has patented it yet, doesn't mean nobody has thought about it. Just because nobody has started doing business around it, doesn't mean there are 20 competitors working on it already. Patents usually just gets in the way and squash the little inventor trying to do business themselves. They then have no recourse but to find a huge corporation sugardaddy to implement their idea at all.

Patents were never supposed to cover ideas themselves, but certain implementations thereof. The problem with software, is that copyright already protects software, so there if you're going to cover something more, you need to rape your constitutional forefathers, as USA, land of the "free", is doing now.

Evolution, will sort itself out though. USA will go bankrupt into its own corruption, greed, war-mongering and neglect of the environment and its own citizens. Somewhere, in the free world, some country will ignore software patents, and through that gain competitive advantage.

Doh

[Steeltoe]

If something can be made in 1 week by a teenager, on no pay or salary, then it obviously is not worth protecting with hundreds of thousands in court fees to make greedy lawyers rich, at the expense of society at large and more pressing cases.

Software lowers the bar of innovation, so yes, nothing in software is really worth protecting. Software is already protected by copyright, which should provide sufficient protection, without hindering the free market to unfold itself.

There is a reason programmers in the field are called "code monkeys". After 4-5 years, if you haven't moved on or up, you are either a real geek, or just love mind-numbing work. There's usually not much innovation going on, just translation of real world processes into the world of computers. At any time, you can usually be replaced by another guy, don't fool yourself. Same with patents. It is not unusual for many people around the globe to get the same ideas at the same time, because the bar to software is so low..

Re:Doh

[gd1234]

My suggestion for reforming the Patent System is this:

The problem is that awarding a Patent is binary situation. You either have the patent or you don't.

An improvement would to be to put patents on a scale.

A trivial obvious invention would be granted "Level 1" patent rights. It would have rights to claim a low level of fees.

A ground-breaking invention that had years of research would be granted "Level 10" patent rights. It would have complete exclusivity in the marketplace.

The solution is simple.

[Jesus_666]

Reduce military spending by 90% and allocate those resources to the USPTO. We're told over and over that intelectual property is the single most important industry in the world and makes approximately many times as much money as all other industries combined (not to mention that civilization depends on it) so if given the choice between a new stealth bomber and a thousand new patents on business methods it should be obvious that the bomber is not the way to go. If another country wants to invade the USA, the USA can simply threaten to sue their companies for all the patents they violate; that should be a much larger deterrent than superior weaponry or nuclear-payload ICBMs.

Let's look at Iraq. Iraqi insurgents do well with AK-47s and pipe bombs but Iraq has virtually no patents. The US Army keeps losing soldiers over there but the American standard of living is much higher. It's clear that if the USA want to stay ahead the solution is cheaper guns and more patents.

Won't work

[Steeltoe]

State will then lose money on patents. Now its an increasing chunk of dough to grease the state machinery. Doing it properly, not screwing society over, is not profitable. If the budget changes, so will the state's priorities regarding the patent system have to change..

http://www.uspto.gov/about/stratplan/ar/2006/30605_stmntnetcost.jsp

you can't remove software patents because ....

[3seas]

... I have a patent application in on a business method of software patent trolling... and that's gonna take like 7 years by the time it goes through.
I paid the fees so they have to process it under the terms that existed when I applied.

And this is why they cannot remove software patents from their scope. Its the only reason. Pre-existing... patents and applications.

From TFS

[loshwomp]

As it is, by the time companies get a software patent, there's little value to them because, after six years, the industry has already moved on.

Yeah, there's some wishful Slashdot nerd thinking if I ever saw it. Look, I despise software patents with the best of them, but the above claim is pretty much refuted by the existence of the backlog, with plenty of "little value" software patents in the mix.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Why are people here so against software patents

[sirlark]

You can't copyright an idea, and you can't patent an idea, at least you shouldn't be able to. You can patent the description of a novel non-obvious process, and algorithms are the best possible descriptions of processes. The problem here is 'non-obvious'. In many fields non-obvious is not necessarily a high bar, but when it comes to software/algorithms it is an incredibly stringent criterion because algorithms are composed of well known totally obvious sub-algorithms (sort this, use hash map for that, whatever) and because the very nature of algorithms is abstract.

Novelty and non-obviousness in software is a quantitative but immeasurable property, which puts us on a slippery slope; if we allow algorithm X a patent for being non-obvious, why not algorithm Y which is only slightly more obvious. Being immeasurable we can't establish a cut off. Instead we would need to have different qualitative method of assessing the worthiness of the patent application. My suggestion would be in the case of software, "Does it do something novel?" rather than "Does it do something in a novel way?"

But even this suggestion is rendered impractical by the 'abstract' property of software and algorithms. We could argue that the first person to get voice over ip right should have been able to patent it by the criterion 'It does something novel'. But really, does it? In an abstract sense, it just transmits data, that data happens to be digitally encoded sound and that's all been done before. The source side of the communication isn't novel either, recording sound had been around for ages before anyway. The destination side of the communication introduces nothing, playing back of sound was also old hat. The only new thing was putting the three together in a specific way, and even that wasn't novel, telephones had been doing that for nearly a century, just not using TCP/IP. Again, it's a measurement problem, how do we measure how abstractly novel an action/process/result is, and for what level of abstraction? Where is the cut off?

Essentially, novelty and non-obviousness are too easily (and justly imo) challenged in the software arena. I agree completely with one of my G*P's: You should only be granted patents for specific implementations that have demonstrable effort spent on R&D, but if you patent software, you open source it too. You get royalties for a limited period of time, and everyone (i.e. society) benefits too. If you don't want to patent and open source it, you can go the trade secret route. The upshot of this is that it clears up a lot of problems in the patent defence area too. It's no longer a case of was my code copied and slightly altered, and if so how much alteration means new/novel/"no longer protected by the patent"? Instead, if someone rips your process off (even if they don't release their code) if their software bears sufficient resemblance to your process they owe you royalties.

Re:Slapping machine

[SanityInAnarchy]

FYI, you can link directly to the time you want.

A defense of software patents

[NicerGuy]

I concede that there are broken aspects of the system, but I can't understand wanting to wipe out software patents all together.

What is the alternative to software patents?

I'm going for a patent now - it's non-trivial and it was very hard work to solve the problem that it solves. Ideas may be, as some have posted, a dime a dozen. But good ideas take years of research, self-doubt, frustration, compromises, and money. Without the patent protection mechanism (or some viable alternative), I guarantee that I wouldn't have tried as hard, invested as much money and energy as I have. I couldn’t have! It takes too much out of you. I would know that as soon as I tried to launch a business, a delivery mechanism, around it – which requires disclosure to people with money who shouldn’t be trusted and who may be in the industry – that it could be recognized as a good idea, taken, and implemented by their funded team of developers in the blink of an eye. Without patents, innovators would have no choice other than to squirrel away their ideas, forfeit them, or work on salary for The Man big enough to crank it out fast and strong.

Implementing an idea is the easy part. The hard part, the thing worth protecting as a society, is coming up with the “closed” system – that is, one that has a well-defined and well-rounded applicability, a delicate balance between exploits of holes in the problem space and acceptable limitations of an approach. The search, refinement, and repeated failure until, and only rarely, a truly new solution found.

Copyright isn't enough. Compared to coming up with a brand new solution to a hard problem, it wouldn’t take much to refactor the code substantially enough to be ruled a new work. Think practically here: You think the courts are clogged up now with patent infringement cases? What happens when the only recourse for infringement is having the judge (not a developer!) try to figure out whether the two code sets are just refactored transformations of each other? There would be a whole new industry for copyright trolls figuring out how to make a case of transforming some copyright they own into others’ code through a chain of refactoring and trivial changes.

A bit of an aside: Microsoft Word is a popular application. It’s not just coding – it’s also usability research, information architecture, 80/20 balance, infrastructure, discipline. It’s taken a company the size of Microsoft to put it together AND to make it a global success (a difficult and valuable feature in itself, if you ask me). Yes, it has its problems and I’m sure there have been many injustices along its evolution – that’s not the point here. The point is that good software is very difficult and expensive to create – not because it’s hard to write code, but because it’s hard to know what to write. Copying the legitimate innovations within, for this example, Word and implementing them from scratch is impressive, but it dims in comparison to the ubiquitous exposure of the features that the global market has indicated that it prefers.

Anyway, I agree the patent system needs attention. I know I’m likely to still get snaked by it as it stands. But abolishing software patents isn’t the answer. We need a more delicate kind of reform.

Re:A defense of software patents

[0111 1110]

So basically you want to patent an idea. You came up with what you consider to be a good idea and you want to prevent anyone else from being able to use it. Are you sure that your idea doesn't use anyone else's ideas? Are you sure that it is truly original? No one has ever thought of anything like it? You aren't standing on the shoulders of anyone who came before you? Even if that is true, what exactly do you hope to accomplish by patenting it? Do you have the money to fight a prolonged legal battle against an infringer? Do you really think it is productive to spend all that effort in court instead of actually improving your software product? Is your idea truly so unique that your competitor cannot come up with an equally good way to accomplish the same thing? Finally, how are you going to know that someone copies your idea? Maybe they just came up with a similar idea on their own. You also may want to ask yourself whether your idea would still be possible if nearly every idea in the problem domain had already been patented?

why bother?

[slick7]

It's cheaper to whack an inventor than to allow his/her invention to be patented, it's cheaper to buy off an inventor than to allow their invention to be patented. It's most expensive to allow patents that undermine the status quo to go forward. That's why people like Stanley Meyer are disposed of, rather than letting his patent trump the oil companies.
Yet, companies like Monsanto can patent their abominations like genetically modified corn and cotton which do more damage than non-GMO strains. Cotton has been a disaster in India and the legal issues where GMO corn pollinates non-GMO corn is only the tip of the iceberg.
The USPTO has become nothing more than a tool for corporate business in "weeding" out (no pun intended) the competition.

Software patents are a mistake.

[GarryFre]

Sure there is reason for protecting one's work from being plagiarized but to do this with probably simple software techniques is a tragedy. You got lawyers and law makers who are NOT programmers who don't know the difference between the equivalent of some bozo trying to get a patent on the use of a hammer so he can have everyone else bent over a barrel and a real legitimate patentable technique. The other idea is this software patent idea precludes the idea that nobody else can think of it. You don't see folks making music patents (Yet) but if music were born under the conditions of today, a small group of greedy individuals would have us unable to whistle a catchy tune without risk of being thrown in the slammer. Thank God, we have a rich and varied musical heritage. Seems to me that software patents haven't gotten off the ground til recently, otherwise there wouldn't be this rich variety of choices for software that does basically the same things. Well for the exception of Adobe Flash and others that seem to have the corner on certain things and if you need to do flash development you got to buy their hammer. There are other ways to protect one's software, and if not, I'm sure there are still other ways.

Just get rid of patents altogether

[devent]

There is no study, no evidence, nowhere, that says that a patent system promote inventions. Please prove me wrong and cite one study that says clearly that a limited monopoly promotes inventions.

But there are many studies that suggests that it's really the opposite is true. There is even now a labor experiment with a patent model that clearly proofs (in the boundaries of the model) that a system with no patents at all not only produce more inventions but the whole wealth of the participants are much bigger. Called The Patent Game

Can we please at least get rid of the patents that are clearly harmful to a whole industry, like software patents and gene patents?

Patent insects and planets

[AnonymousClown]

I see. So when someone discovers an insect in the Amazon or where ever, they should be able to patent said insect?

The same with a comet that is discovered or asteroid?

Or anything else that exists in nature?

for instance.

[mevets]

It may be an improvement if the patent process was corrupt; as the feeding frenzy on the battered carcass of innovation is sickening as well. It isn't just software, a quick perusal of this quackery : Patent Number US 7,485,885 B2; February 3, 2009 : provides at least an instance in a rather imaginative domain. [ symopsis : a sticker that protects you from cell phone radiation; apparently you can apply two so you are doubly protected ].

In the above example, there were certainly technical people involved, but you don't have to have agreed to any ethics standard to be an inventor; presumably that is part of what lawyers bring to the table in the patent process.

How about software patents changed to this?

[endymon]

What if (software) patents worked in the following way.
The patent application had an actual software implementation of the operation to be protected.
The patent would be graded on novelty (maybe an A-F scale or something).
Once granted, any individual/corporation could "license" that code verbatim from the patent office directly. The license money would be routed to the original inventor via the patent office.
The amount of money is weighted based on the Novelty of the code.

What this does, is forces the actual innovation to have taken place (code was actually written, not just psudocode) and allows new software development to quickly look through the patent database find code they need to make their software work, pay the inventors and move on without having to re-implement. Let your software devs develop NEW code or frameworks instead of core components over and over again. Furthermore, the novelty scale removes a great deal of burden from the patent examiners. They can cut a large portion of their research time (helps with the backlog) because basically every piece of software that is sent in (if it conforms to the submission requirements eg IT WORKS) is just graded and then approved. If the patent seems extremely similar to something they've seen before, then it can be rated F grade (low payment). Its still worthy of something though, cause by having the code instantly available for a license, it would save some time (which has value).
The only hurdle is determining the actual payments per rating. I suppose that could be legislated. I would suggest a % of profits earned from the derivative software (would be a small %) that way it wouldn't become a barrier to entry for new companies/individuals, but would assure that adequate compensation was granted in the case of blockbuster software sales.

I could see a similar system adopted for standard patents, but lets not dwell on that.

Re:How about software patents changed to this?

[0111 1110]

That's an interesting system. Maybe you should patent it. I am thinking C++ (or Java) class libraries with classes that cover virtually every problem, graded by how efficiently the end result is achieved. But why make it a matter of who was first? I think if someone comes up with a more efficient implementation it should take the place of the previous one.

730 Kelvin? That's absurd!

[Anonymous Coward]

"The backlog of patents is almost 730K"

Wow. That's almost 456.85 degrees Celsius. (or 854.33 degrees Fahrenheit)

USPO must really pay a lot for the heating, not to mention the cost of materials that will withstand such temperatures.

FYI - Tim O'Reilly Tweets this Slashdort article:

[icepick72]

http://twitter.com/timoreilly/status/24220441399

Why big companies want slow processing:

[Anonymous Coward]

True.

Big companies apply for a lot of patents, their applications are not disclosed, and there is later a chance that they can prevent a small company from operating.

It's part of the legacy of President George W. Bush. Vice President Cheney and others like him wanted as much government money as possible for their own projects. They reduced funds for anything else.

The U.S. government is EXTREMELY corrupt.

Damascus Steel

[IBitOBear]

According to some metalurgests there is now the belief that the actors in Damascus Steel couldn't have patented the invention because they, themselves, didn't know what it was.

In particular it is very, very hard to get a sample of the stuff today, but in the few cases where it has been managed, there have been systematic impurities in the base metal. It is now believed by many that the "secret" was not the technique of the invention but the fact that the iron was from a particular mine where there was a natural alloy undetectable by the iron workers of the time. So "the secret of Damascus Steel" didn't die off with the secret masters, it petered out with the ore.

The real lesson here is that truth is in the details.

Software patents lack those details in every case.

And the one "hardware" cum system patent I was involved with was adulterated by the lawyer to the point where, having been the "inventor" myself, and having written the original draft of the patent information, I was sure that after comparing the actual invention and the original draft to what got filed, well the original invention could have been successfully argued to lie outside the patent.

Let me say that again, the patent as filed had been so lawyerized and generalized that the box on my desk was not properly described by the patent.

When I pointed the details of this out to my boss and the lawyer, I was assured that it was normal practice to cast as wide a net with the patent application as possible and that it didn't particularly matter that the individual implementation was sufficiently variant from the claims to be arguable. The protection was in the threat of having to have that argument in a court of law.

So there it is, the patents are bing filed with an eye to litigation and the ability to threaten same for business purposes. No recording of actual inventiveness here. Just the widest net and the most direct-able shadow.

Sure, other lawyers would give lip service to that being bad and wrong, but having learned the "state of the art" of constructing claims I have yet to see a modern patent, particularly where software and computers are involved, that doesn't show obvious signs of having been "broadened" from describing a particular invented thing. The first big warning sign is the "or in the alternate" language.

Patents have become a joke, not a funny one, and far too long in the telling.

Software patents are works of fiction that, if they described the invention, would consist entirely of source code, as the source code is the only actual and accurate description of the program.

Re:Damascus Steel

[Teancum]

Since it is a well known fact that all gate layouts can be done in software and all software can be done in hardware, I've argued that any sort of software patent must include a hardware layout that is an implementation of that patent. In other words, you need to provide a schematic for the algorithm implemented in gates.

Patents have become a joke, not a funny one, and far too long in the telling.

Software patents are works of fiction that, if they described the invention, would consist entirely of source code, as the source code is the only actual and accurate description of the program.

they have been

[ProfBooty]

pay is pretty good, you start 60-75k (if you are fresh out of school or have 1-2 years engineering experience) and make 100k+ in 3-4 years before overtime and bonus. They are planning on hiring 2,000 people over the next two years and have quadrupled in size in the past 6. For a while they were giving 10k PER YEAR for 4 years hiring bonuses.

they already do

[ProfBooty]

http://www.peertopatent.org/

Does anybody know what percentage...

[Osrin]

... of the 730k patents mentioned are software related?

Re:Why are people here so against software patents

[Draek]

To be against software patents is akin to saying that there's no innovation in the field of software, or that if there is innovation it doesn't need to be protected.

Wrong. It's akin to saying software is akin to mathematics: a field where innovations are far more valuable unrestricted than under a government-enforced monopoly.

Without software patents, there's nothing to stop a big company, or anyone for that matter, from stealing a small developer's idea.

So? here's what happens in the real world:

Without patents, Small Dev makes product A, Big Corp makes product iA, a blantant copy of A, getting most of A's potential user base as result of Big Corp's marketing strength. Small Dev gets a small niche in the market he helped create.

With patents however, Small Dev makes product A. Big Corp makes product iA, a blantant copy of A, getting most of A's potential user base as result of Big Corp's marketing strength. Small Devs sues Big Corp over patent infringement, so Big Corp has their lawyers find a dozen patents A owned by Big Corp and which infringes on and files a countersuit. Small Dev goes bankrupt trying to defend against it, and as result has to drop the original patent lawsuit. Big Corp gets the whole market for itself, and if Small Dev is very very lucky, Big Corp may believe his expertise is valuable enough to buy Small Dev on the cheap after the bankrupcy.

Fine, have more stringent standards for software patents instead of abolishing them.

Why? there's no evidence showing that the existence of patents itself is a positive force on the industry, regardless of the standards used.

The only proof you need

[Crypto Gnome]

That the current patent system stifles innovation is staring you all in the face.

• There exist companies today who do NOTHING other than buy IP (ie patents) and then use them to bludgeon other companies out of existence.
• There exist patents today where the company has stated that they never intend to turn this into a product, the only reason they applied for the patent is because having a large patent-war-chest is a valuable asset.

How does that work - isn't the POINT of Patents so that "the inventor" can be guaranteed to make a reasonable return from his invention (or words to that effect)?

The Current Patent System exists to serve itself, and the army of lawyers who have built an entire industry (Patent Lawyering) around it.

Nobody

Else

Benefits

Sad but true topper example

[dbIII]

I can top that unfortunately. Here we had a state police commissioner that was given a knighthood - Sir Terrance Lewis. You know that joke about drugs seized having a street value of half a million because that was what the cops sold it for? He actually did that a few times, replaced them with talcum powder and got bribes from the people he'd seized the drugs from. All drugs seized in the state were taken into the evidence room near his office and most of them turned into talcum powder that way. The police force under him was a mess but not beyond saving. In the end he went to jail for a long list of crimes and the police force is now run in such a way as to rip out corruption whenever it appears. That takes work and really pisses off the police force as a whole every time there is a false positive, but it gets results.
If your cops take bribes, steal etc (and get away with it much of the time) then you have a disfunctional police force that should not be that way in a first world nation. The above poster is probably not being naive, they probably just live somewhere else.

Why Not Use Peer to Patent?

[richards1000]

Why don't they use Beth Noveck's Peer to Patent http://www.peertopatent.org/ which they've already tested?

6 years

[evilviper]

As it is, by the time companies get a software patent, there's little value to them because, after six years, the industry has already moved on."

Right. Who uses MP3s anymore? Or MPEG-2? Or H.264. Nobody, of course. There's absolutely no value to software after 6 years.

But people with money LIKE patents.

[Anonymous Coward]

People here often decry that patents stifle innovation,* they are only good for large companies, blah blah blah.

The thing I never see people mention is that when a company is starting out, and is looking for money to get off the ground and, you know, actually pay its employees, they need investors. And investors insist on having patents because they want to know they can block others from getting into the space. How many of you are VCs (or even know what that acronym is without looking it up)? OK, and how many of you have started a company and taken it public? Yeah, that's what I thought - most of you are grumpy software developers working in a large company - the very epitome of Office Space. And that's why you don't think there is a use for patents.

*Yes, patents stifle you building something someone has patented. Duh, they're monopolies - that's their purpose. They increase innovation because now you have to think of a new way to solve the problem.

EPO likes SW patents, EU law doesn't cover em.

[Anonymous Coward]

EPO likes SW patents, EU law doesn't cover em. The EU law says that the patents are worthless. This doesn't stop you paying for one, mind. Just like you can buy a bit of the moon. No law says you can do so, but no law says you can't pay to buy a bit of the moon.

The EPO keep trying to make software patents enforceable though. This is another reason why people are buying EU patents: when the EPO get their way, you'll be able to sue like shit.

I have no mod points...

[znerk]

I have no mod points... and I would be throwing them away by commenting if I had them, but you're already at +5 Insightful, so we'll dismiss that for now.

You, sir, have made an amazing post, and I hereby commend you; I post this while clapping, cheering, and standing in my seat (virtually, of course).

Yes, my post will be modded into obscurity because I'm not actually adding anything to the discussion, but it's worth it (who needs karma, anyway?) to express my pleasure at reading this post. You have managed to sum up (ok, not quite succinctly) a large number of the issues with the patent system in its current form, and even cast doubt on whether it should exist in any form in today's hyper-communicative society.

My hat is off to you, sir. Bravo.

Ever try to draw a patent picture?

[VirtualJWN]

I think that the entire "patent process" is as outdated as the pictures you have to submit. Everything ends up looking "steam punk", like something Edison and Tesla may have collaborated on. ALL patents are good for is padding lawyers pockets, after the fact and stifling innovation. Also keeping new ideas from happening in fear of violating patents. this is as true in the software industry as in all aspects of inventing. I think the patent office has grown to another immense glob like stucture in DC that absorbs money and creates jobs for lawyers. Also, to get a patent, should you not have to demonstrate an invention? Microsoft "patented" the human blood stream as a Local Area Network transport layer. Granted, Gates is likely more machine than man now, with the Borg implants, but get rel, they don't have the technology. BTW - IF THEY DID, can you imagine people 'blue screening" and having to reboot while say "driving" or during "intimate relations" Woozers! I think for software SCO was a good example of why this is broken. Patents good for lawyers only. Same with song and movie "copyrights", how many times should a person be paid for their work? If I write a program for a company, I get paid once. They may sell it, but I the Inventor get paid once. there is something wrong with that picture. Mark Twain was the biggest proponent in getting congress to approve copyrights, I discovered this while working on my PhD. Twain who benefited greatly from dime novels, increasing his popularity, after achieving his fortune through that very means, made it illegal for others to do the same.

Specific claims & working model.

[ResidentSourcerer]

Things that would help:

1. At present in chemistry patents there is a tendency to patent the periodic table. "The use of a transition metal catalyst either as pure metal, oxide or sulfide, embedded into a suitable substrate" when what they did was use platinum on ceramic beads. Claims should be allowed only for what you ahve done.

2. The patent office now officially rejects perpetual motion and net energy machines "unless accompanied by a working model" This should be far more universal.

3. Some form of public review as to "prior art"

4. Some qualitative threshold on "improvement" E.g. You have to demonstrate not only is your patent different, but it is also better, and not just by a hair.
E.g. If you have a new sorting algorithm, you have to show that it is at least 20% faster that the existing ones or that it is 20% better for small cases. If you have a patent for new kind of brakes for a car, you have to show that it's simpler to make, or works better in the rain.

The touchstone for this should be, "Is this enough better, that existing practitioners in the art are likely to want to license the patent because it will save them money or allow them to produce a better product." If the answer is no, then the product is insufficiently innovative.

Copyrights are ALSO a mess, of course

[Anonymous Coward]

Software patents, perhaps an anethema to proper use, but now -- apparently carefully timed to come out AFTER the manditory Librarian-of-Congress review of copyright law -- the 9th Circuit chimes in with their absurdity! You don't own that software you bought.(PDF), Gizmodo Article

So, when you LEASE a copy of software, should you even be charged "sales tax" on it? The interesting thing is that most of those Shrink/Click-wrap licenses ALSO make it illegal to rent-out or lease-out the software. You may not (as this shakes out) even have the right to USE, or even POSSESS that "software you just bought", because of this complicated snarl.

Would you put a company advertisement in a publication (e.g. newspaper or magazine) for which the consumer had no rights to take that ad with 'em on the way to your store? Would you "buy" a book you can only (one time, and one person) read in one location, next to one lamp -- Hardbound? -- Paperback? -- How about an e-Book?

How does this "decision" affect your right to extract-for-comment?

Anonymous Coward

[Anonymous Coward]

Here is a thought.. If software is nothing more then mathematical equations, and several companies are getting away with patenting math, then can I patent Trigonometry ? hey how about I patent A = A + B.. yup.. think i'll file that right now and i'll sue everyone on the planet who uses it,. yea thats it.. yea.

Software patenting is stupid. However, if you have an idea FROM your math that produces a product, then go ahead and patent the product.. But, Math or linear math should never be allowed. Otherwise, once all the patents take over every formula ( which could take a long time ) then no one else can make software any longer. The software industry will become stagnant. And guess what.. might as well throw the paperweight away that is no longer being used on your desk.

Patent Offices should know better. What a bunch of retards !

not the government's job

[Anonymous Coward]

It's nice (though at this point not unexpected) to see new USPTO Director David Kappos adopting yet another measure to increase transparency and efficiency in patent law. As to the software patent issue, the Supreme Court (rather obliquely) ruled in the Bilski patent litigation that software may be patented. Since software patents are therefore neither illegal nor unconstitutional, it seems to me that it's up to innovators to decide whether or not they will attempt to obtain such IP protection. It's not the job of the government to dictate the limitation or expansion of such rights.