Ridiculous Software Patents: a Developer's Nemesis

StormDriver writes "Have you ever thought about patenting a pop up note, an online poll, a leaderboard in an online game, or a system where you open apps by clicking icons? I have some bad news for you – it's impossible. Not because the claim is stupid, it's just that all of those things are already patented. And it's all fun and factoids, until one day you find yourself in the role of a software start-up."

Comments

So don't worry about it

[Rogerborg]

Ask a lawyer if you should pay a lawyer to do something for you, and what do you think the answer will be?

Be smart, just get on with it. Axiomatically, you'll only become a target for a lawsuit when you're already successful. You can pay a lawyer then, if you like.

Or alternatively, pay an accountant. Set the company up so all the liabilities are here and all the assets are there. Ignore patent trolls, ignore any court judgements, and if and when anyone with a badge does ever come to collect, point them at the Pile-O'-Debt and tell them to knock themselves out.

This isn't theoretical - I've already been though a few employers who were set up in exactly that way. One of them simply 'phoenixed' the liable part of the business overnight: rename it, put it into administration, start a new business with the old business' name, and "re-hire" all the employees. Only the company number changed. Apparently perfectly legal stuff, at least in the UK.

Re:So don't worry about it

[Riceballsan]

Already succesful and fully profitable are 2 completely seperate things. It isn't unheard of for a software package to pick up enough of a following to draw the guns before making enough to simply pay off the authors past due mortgage payments, and even profitable dosn't mean a lawyer is going to do you much good. Lets say somehow microsoft had a patent for something blatently obvious that was used in a game that say made 100k in a year, after expenses cost of living etc, this start up has 25k left to pay a lawyer to deffend himself, from microsofts 2.5 million they decided would be worth investing into eliminating a threat before it was big enough to fight back.

Re:So don't worry about it

[Anonymous Coward]

it happens all the time with american stories/commentators. you get used to learning things that aren't readily applicable.

Re:So don't worry about it

[rainmouse]

Thanks. Not wanting to be an ungrateful ass or anything, but it would have helped if you had stated the following information pertained to the UK first. .

It's very typically the other way around. TFA for example assumes you are in the USA without ever even mentioning it and therefore ignores things such as the European Patent Convention which "excludes 'programs for computers' from patentability (Art. 52(2)) to the extent that a patent application relates to a computer program"

Source: http://en.wikipedia.org/wiki/Software_patent

Re:So don't worry about it

[xMrFishx]

I tend to make the assumption that if it's about some silly law(-suit), patent or other silly legalese problem, then the poster resides in the US of A. else { Europe }. Occasionally I get a false positive, but then nothing of value was lost at that.

Re:So don't worry about it

[yeshuawatso]

This won't work in America due to piercing of the corporate vail. Moving your assets to a holder won't protect them, and moving debt to subsidiaries won't work either, as you're committing fraud. This is the EXACT same thing Author Anderson helped Enron with. Enron moved their debt and losses to special purpose entities (SPE) to boost the parent companies earnings and balance sheets. As a result of such shenanigans, corporations got stuck with complying with the million dollar a year law called Sarbanes-Oxley. Granted most of the law applies to publicly traded companies, but if you're running games like this you're already publicly traded, or looking at an IPO, either way, you're going to run into SO pretty quick.

Re:So don't worry about it

[EMN13]

Sounds like an efficient business practice! Have you patented it yet?

Re:So don't worry about it

[mspohr]

This also works in the US. I have done this to guard against the threat of lawsuits with small companies (but never had to use it). Large companies do this all of the time. It's called "strategic bankruptcy". Its a convenient way to privatize profits and socialize the losses. Our banker friends did this with all of the toxic loans they created.

If you go and actually try to research software patents your head will explode so best to follow Linus's advice:

I do not look up any patents on _principle_, because (a) it's a horrible waste of time and (b) I don't want to know. The fact is, technical people are better off not looking at patents. If you don't know what they cover and where they are, you won't be knowingly infringing on them. If somebody sues you, you change the algorithm or you just hire a hit-man to whack the stupid git.

Re:So don't worry about it

[Rakishi]

Stuff like this shouldn't be necessary. All these measures are patches for working around a broken system.

That system is called western civilization. It shouldn't be necessary to do any work at all but have all of life's pleasures delivered for simply living but that's not reality either. Deal with it.

Is some kid right out of college expected to put development of his Awesome New Idea on hold until he can contract a patent attorney, an accountant and a legal aide so he can implement the most trivial and obvious of software patterns?

That advice has little to do with software patents honestly and is just good advice when setting up a business of any sort. Talk to an attorney and/or talk to an accountant. Do that a few times till you find one who isn't a lying worthless shit. Then do your own research. Then talk to them again.

Life is full of complications so, as I said before, learn to deal with it.

Kiss the Mark Zuckerbergs and Sergey Brins of the world goodbye, they'll go off and innovate in areas *not* encumbered by such useless nonsense.

Zuckerberg is getting sued last I checked for some hilariously bad contract he made early on.

Sergey Brin was a student at Stanford, they in fact paid to have everything he did patented. Actually, everything he did was owned by them but that's the usual PhD student arrangement. Works out quite well assuming your school isn't a bunch of bastards. Probably paid for good accountants and attorneys as well to ensure good return on their investment.

Re:So don't worry about it

[jbolden]

That's not so easy in the USA. US law has the notion of "shell corporation" and you can pierce the corporate veil to go after judgements. In fact setting up things this way allows the court to go after the owner's personal assets.

Re:So don't worry about it

[ghjm]

The company with the assets has a side business of extending credit to the company with the liabilities, at an extremely high interest rate.

Re:So don't worry about it

[MBGMorden]

Slashdot is an American site. Sure there are a large number of foreign visitors, but the site itself and the bulk of the readers are American. It only makes sense to assume we're talking about America unless a qualifier is given. If I went to the BBC's site and started posting in a discussion where location mattered I would immediately preface my statements with the fact that I'm talking about America, because though there are visitors from all over, the BBC is a British site with primarily British readers.

Like it or not, there will almost always be a "default" locale that is assumed when you're on a site.

This is right.

[kurt555gs]

I date back to Z80 Assembly as the preferred programming method. I had developed some very interesting and unique things. I never thought of patenting them, and I shared them on bulletin boards and in print with joy.

Now, with my many years of experience, because big business has laid lawyer minefields with software patents, I don't even think of publishing my own programs. When I do work, it's as a contract consultant to a giant company (who also has me tied up in 2" of contracts that I can never work for anyone else)

I'm thinking my next venture will be a hot dog stand. A good hat dog is as illusive as it is tasty.

Software patents serve no one but giant companies, and only to stifle innovation. Exactly the opposite of their stated purpose.

Re:This is right.

[Frosty Piss]

A good hat dog is as illusive as it is tasty.

Yes, yes it is. And hard to find.

Re:This is right.

[pieterh]

"Software patents serve no one but giant companies, and only to stifle innovation. Exactly the opposite of their stated purpose."

However, that was always their purpose. It's always been the largest firms (particularly IBM pre-2000 and Microsoft post-2000) that expanded patent law into software, and that bought the most patents. Small firms have never mixed innovation with patenting, it's contradictory. You can either hold patents and sue others, or you can make products and avoid patents. Trying both means you are sued systematically unless you are in a field with practically no patents, e.g. a technical patent on a fashion item like a shoe.

Patents are inherently anti-competitive, this is well known in the patent industry, where people who actually make products and innovate are considered as a kind of food source for higher level patenting predators.

In software, the food source seems endless, which is why no-one's worried. But in other industries, it's already tipped so far that basic research is throttled in the US, EU, and Japan, and other countries are easily taking a lead.

All patents are bad, they all allow one entity to control the use of an idea in the market, they all act to restrict competition and they are all inherently anti-free market. There are no good patents.

An AMERICAN developer's nemesis, you mean.

[unity100]

Not a european developer's nemesis. Because, software patents are not recognized there, due to higher level of common sense and less greedy control over society.

this picture painted in your summary and the articles, is the picture of what american capitalism did to software. a feodal minefield in which you either work for a bully stronger than you, or dont work at all.

Re:An AMERICAN developer's nemesis, you mean.

[pak9rabid]

Yeah, well, if you want to do any business in the US (which is a helluva market to just ignore), then yes it's even a European developer's nemesis.

Re:Devil's advocate...

[theRiallatar]

I'm pretty sure there's a Civ4 analogy in here somewhere.

Re:patenting is easy, defending it is hard

[Barrinmw]

Oh, but it easy to threaten a small startup with a suit because they violated your patent, they don't have the money to defend themselves in court.

Re:Confusing

[tepples]

Since we all seem to agree that you cant patent wood, or fire, or dirt

At least in the United States, one can patent a novel composition of matter, such as a new type of wood or dirty.

And like all patents, it has an expiry date.

So do copyrights, in theory. But like copyrights, patents on methods of information processing last long enough to be counterproductive at "promot[ing] the progress of science and useful arts", as the US Constitution puts it.

Re:patenting is easy, defending it is hard

[Jason Levine]

It's the business equivalent of the RIAA's copyright lawsuits. Find 1,000 small businesses. Send them letters claiming that they are violating a patent that you hold the rights to. Demand $X payment or you will sue. Many businesses will get scared and pay up. The ones that don't you can either sue (in a different district than they are in so as to make it prohibitively expensive for them to defend themselves) or you can ignore. Use the money towards Threat Round 2 (and towards a new car for yourself).

Re:The end is nigh

[realityimpaired]

Nuh uh! I just filed a patent on a method for stifling innovation by strategically filing patents with no intention to develop!

Re:Devil's advocate...

[thePowerOfGrayskull]

may not have been so 10 or 20 years ago.

We've had the internet for over a decade now, and yet "ON TEH INTARWEBS!!1!" is still supposedly a novel and non-obvious way to do things.

It's like the old adage about how to read fortunes from fortune cookies. Except instead of the usual, you substitute "on the web" to get your patent.

Re:The end is nigh

[gsslay]

Nuh uh! I filed a patent on methods of filing patents. You'll be hearing from my lawyers.

Re:Devil's advocate...

[pushing-robot]

Fortunately, patent terms haven't ballooned the way copyright terms have. Patents now cover up to 20 years from the first filing date (which can be many years before the patent is ultimately issued). In most industries that's pretty reasonable, but in software 10-20 years can be an eternity.

It seems like the best approach would be to change the patent term to whatever the length of a "generation" is for a particular industry, consulting experts in a given field to determine what that epoch may be. In automobiles, it might be twenty years. In software development, it might be two.

My dire prediction

[aaaaaaargh!]

I hope I'm wrong but I find it entirely credible that in the not so near but also not too distant future writing programs -- be it for yourself, for OSS, or for small commerce -- will become an unlawful underground activity. All software and information will be controlled by a small group of huge stock enterprises, the sole survivors of the first international patent and copyright war. Unless they work for one of those giants, programmers will have to meet conspiratively in old cellars, private apartments, and unknown bars but often these meetings, which are only announced by mouth to mouth propaganda, will be interrupted and dispersed by violent police raids, often resulting in people getting killed, arrested, or being sued for statutory damages of 75 trillion dollar.

Hopefully, if this is going to happen it will be a bit like Half Life 2 (except, perhaps, for the aliens).

Re:Devil's advocate...

[dataminator]

Do you actually have an example where the differenciating aspect with regard to prior art is "on the internet"?

I doubt that you will even find many examples that mention the internet in the independent claim, as that would be far too limiting. Only very inexperienced (and dumb for not getting help) applicants would possibly write a patent like that.

Re:Devil's advocate...

[pushing-robot]

Patents are supposed to cover implementations, not ideas. If I patented, say, a glue that worked in space, or at the bottom of the ocean, it wouldn't be "obvious" just because it's glue.

While the patent system is abused and some of the things "patented" are vague ideas that would apply to almost any implementation, there's no reason why a patent can't cover something which already exists in another environment.