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Ask Slashdot: Reducing Software Patent Life-Spans?
seattle_coder writes "Many have advocated for the elimination of software patents. The arguments generally are that software patents are handed out too easily, and that they're too difficult and expensive to fight. Some say that patents just plain don't make sense for software, which is such a dynamic technology. Given that the standard patent lifetime is 20 years, and software changes so rapidly, is the life-span the problem for software patents? Would reducing the software patent lifetime to 5 years or even less be the thing to do?"
No, because the process to get a patent can easily stretch five years. Also that doesn't solve some of the other fundamental problems with software patents, such as software being math.
We shouldn't be able to patent software for the same reason we can't patent mathematics. Copyright protection is sufficient and suitable for software.
the one that's holding all the cards isn't going to ask for a new hand. the broken patent system serves the interests of large corporations, and they'll fight tooth and nail against any changes that is against their interest. in summary - dream on.
ELOI, ELOI, LAMA SABACHTHANI!?
Who the hell is Easily, and why should he be getting all those patents?
Would reducing the software patent lifetime to 5 years or even less be the thing to do?
Sometimes the patent has to be filed during development, not when the product is being released. So that proposed five year time frame could include a couple of years of development. Perhaps five is too short, or perhaps that five years begins with product release. Maybe eight years from filing or five years from product launch, whichever occurs first?
No patents for software, period. Copyright protection is the only proper protection for software. I cannot compromise on that position. And, yes, copyright protections should be limited for software, as well. There is really almost nothing in the world today more than 15 years old which NEEDS protecting! It's so obsolete that no one wants to use it. It should be publicly available, and in the public domain, for student's use, more than anything.
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
Unfortunately first comment was patented so I had to make it a third comment instead
is the life-span the problem for software patents?
No, the problem is that software is an algorithm and shouldn't be subject to patent law anyways. It's like trying to patent a mathematical formula.
sysadmins and parents of newborns get the same amount of sleep.
Since it's legal for special interests to bribe politicians in America, and corporations who hold lots of patents also have lots of money.. well.. let's just say they bribed our politicians to fuck us over, and we've been in a downward spiral ever since.
There, FTFY.
I dunno about patents so much. I think used properly they are useful. Unfortunately they are more often used to stifle innovation than they are to encourage it like they were intended to do!
My main worry is copyright. I think copyright law needs dramatic alteration! To me a Rudyard Kipling work that has been out-of-copyright for some time and bastardized by Disney to create "The Jungle Book" is more worthy of protection that a 20 year old computer game like "Tai-Chi Tortoise"
The first has a great deal of artistic merit, and will be recided in its original form for hundreds of years. The second will be in copyright for many years, despite the fact it has slipped from memory already!
There should be some distinction between a work that has potential monetary worth 75 years after its creation, and something that has no worth 5 years after creation.
Yes, the lifespan of patents is a big problem.
But in software, things change so rapidly that patent protection for even five years is an eternity: by then, it is game over.
The fundamental problem with software patents is that companies patent simple ideas. The Amazon one-click purchase patent is a prime example. These kinds of ideas should be considered "obvious" by the USPTO, but unfortunately these kinds of things are routinely patented. The result is that there is a minefield of patents around every simple idea, every basic thing that one can do in software. Anyone who wants to create a startup company around a software product is at great risk, and instead of investing their time and energy into product development they now have to invest it in legal research. That is not a very good state of affairs for an industry that thrives on innovation.
If patents are to be allowed to exist for software, the bar for what is not obvious should be much, much, much higher than it currently seems to be.
Would reducing the software patent lifetime to 5 years or even less be the thing to do?
No. Don't accept a compromise, it'll only look like you're trying to change the deal if you get it and then try to go further. If you oppose software patents, then oppose them.
"Welcome to our world. We are the wasted youth. And we are the future too." Yes, I know these are stupid lyrics.
Just stop granting random patents because the people who decide on 'em can't understand what's written in a paper.
Let real tech people judge and - eventually - grant a *limited* patent, but stop giving away things because people can't read a proposal..
to see all MS Windows versions from WinXP and older all source code released as GPL-3
I don't see how changing the patent term would have any effect on this whatsoever. Even if the copyright term was shrunk and they fell out of copyright, they'd go into the public domain rather than GPL.
Jew rat lawyers? Come on, AC - the Jews may own a few of these patents and copyrights, but it's been a free-for-all all along. If you MUST dump on the Jews, go ahead - but save some dumping for white, black, brown, English, French, American, etc etc ad nauseum. I believe in equal opportunity!
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
IMHO - WinXP is not quite there yet. I give 15 years for copyright protection. We can all argue the fine points of this thing, but at least we're talking the same language. Patent holders, on the other hand, speak some kind of gibberish.
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
All high-tech related patents should be 18 months from when the product first hits market. And if you don't hit market in a certain amount of time, you forsake the patent. Period. That's enough time to bring something to make a pile of money off early adopters and reward innovation while not stifling progress.
Making them 3 years would solve many many problems.
But, the TRIPS agreement says patents have to last 20 years.
However, the TRIPS agreement doesn't say that software has to be patentable. So countries could declare that software isn't patentable, and then create some new legal thingy called "petents", and say that petents last 3 years and that software innovations can be petented.
This would be hard work because some countries (USA for example) push the idea that TRIPS requires software patents.
http://en.swpat.org/wiki/TRIPS
Really, shortening the duration would be as much work, and there's always the risk that the monopolists will find some other nasty clause to stick in to make 3-year petents really harmful.
Let's just go for abolition. It will take time, but it's the only practical solution.
http://en.swpat.org/wiki/Why_abolish_software_patents
Expert in software patents or patent law? Contribute to the ESP wiki!
Anyone who has ever programmed just a little knows that programmers invent algorithms every day and reuse somebody else's algorithm every minute. It is just a greed-fuelled idiocy to patent random bits of what programmers invent as part of their work. It is like patenting a mathematical proof or a law of physics.
Then there is another matter: when are two algorithms identical? When the code is exactly the same, including the naming of variables? No matter the variable naming? When they generate the same machine code on some machine? When they compute the same results (but this is undecidable formally)?
Software patents are a stupidity to make lawyers richer and to make the life of developers more miserable.
I doubt that reducing the patent duration will help. Once the patent expires, they'll just patent it again, since it's clear that the patent office isn't applying a high bar for prior art.
Make software patents shorter-term - six months to three years should be about right.
Now, obviously, companies are going to start filing their software under non-software patents. But it's far easier to argue "this patent was misfiled, it should be a software patent (and thus expired two years ago)" than it is to argue "this patent is completely invalid and should never have been allowed". Remember, the people deciding these cases are bureaucrats - misfiled forms are something they can handle; the system being wrong is something they can't.
While we're at it, cut copyright in general to ten years, with a single ten-year extension if it has been in constant commercial production. That brings them in line with patents, and provides an incentive for companies to actually use their copyrights (instead of sticking them in a vault like Disney). A twenty-year copyright would put all kinds of things into the public domain: season 2 of "The Fresh Prince of Bel-Air", Final Fantasy IV, Terminator 2, Metallica's Black Album, and the novel "The Sum of All Fears" - and that's just things that would enter the public domain this year.
There's numerous reasons why patents on software are invalid. The most difficult to understand for a non-technical person might be that it can be reduced to math, which is already not patentable; so be allowing patents on software you are allowing patents on math. And demonstrating this in court for any scenario could be somewhat difficult.
But the simpler answer (from the start) should have been that you are not supposed to be able to patent an idea; you must patent an invention (implementation). In software it's either source code (covered by copyright) or it's an idea (not patentable).
The simple question from the patent examiner or judge for a software patent is a request to see the implementation. Since there's no implementation in "a way to navigate the web using a touch interface" it should get tossed. On the other hand, the specific implementation could (I suppose) be patented, but since the implementation is already covered by copyright, why bother with the (inferior) patent...?
If you think imaginary property and real property are the same, when does your house become public domain?
The original idea behind a patent was to protect someone's "mechanical" innovation and to allow the inventor to bring it to market and profit from it without competition from corporations that would have the money to steal it and mass market it faster. IMHO, the patent was never designed to protect the large corporation but the small time inventor to allow him or her to build a business and potentially make money at it. Software is basically almost obsolete from the time it goes out of beta and is brought to the market. Software patents really came about in force as software development companies became concerned that the threat posed by open source was no longer going away by fear, uncertainty, and doubt campaigns. The software patent system was designed, again in my humble opinion, to stifle open source.
..is NOT to reward someone who invested nothing other than a few neuronal sparks coming up with an idea, but to reward someone who risked a significant investment in time, money, and materials to be able to recoup that investment plus make a profit in exchange for sharing the fruits of that investment with everyone.
The VAST majority of software and business-method related patents are nothing that someone competent with ordinary skill in the field could not come up with as a common-sense solution to a specific problem, WITHOUT said investment OR risk.
That said, the problem is that bringing the original intent of patents back into the system is not in the best interests of those who decide who gets elected (it isn't the voters, natch) and, thus, will not happen without a revolution of some kind which circumvents their control.
Even civil disobedience won't get us very far because, ultimately, most people could care less that they are controlled like sheep, and believe that their masters are the "good guys" and can "do no wrong". As a result, get used to it until the system explodes and has to be replaced by something else, hopefully better, but such is not guaranteed. It is the time-honored tradition of the human race since time immemorial to let the decay of civilization outrun our ability to contain or mitigate it, to ultimately consume and destroy us.
I just wish it would hurry the hell up so we can start anew.
-SS "Teach the ignorant, care for the dumb, and punish the stupid."
The individual product still gets copyright protection forever so the loss of patent only means that they can't exclude *everyone* from competing with their own products using their own code written from scratch.
Patents are a terrible fit for software and should never have been applied to it in the first place. Copyright provides plenty of protection.
Instead of looking at this with that same crappy "algorithms and software are math" (apologies, but it hasn't worked before, and it certainly won't now (unless we maaaaybe reduce EVERYTHING to 100% pure mathematics)) view, let's start looking for new ways of explaining it to the masses - they don't get it. The fault is not entirely their own cause of their ignorance, we haven't properly educated them. What do you do when people don't get the idea in political situations?
Protest.
Civil Disobedience.
Lobbying.
I'm pretty sure if 1000+ hackers showed up on the doorstep of the whitehouse equipped with laptops running as much patent-violating software as they could possibly muster - that'd be a pretty good start. The only question is who has the gull to show up? Who has the balls to write that code? So far, the one thing the hacker community (and other code-centred groups yes) seems to lack is some kind of motivating factor. Perhaps, and this is just a thought, the right to code what we please?
I'm almost tempted to organize something of these lines myself, problem is I can already smell the -1 rating this is going to earn for "stating the obvious" or "trolling". Can't say I didn't try.
Cheers, DH.
The real issue is that patenting has moved from protecting the method of solving a problem into solving a particular problem.
For instance, I cannot patent mowing a lawn. I can patent a lawn mowing machine, even one that exactly copies the pattern created by another lawn mower that also runs on gas and uses a rotary blade to do it. As long as my lawn mowing machine is different enough to merit the patent, I think it's fair so someone doesn't come along and copy my machine.
Now people are patenting ideas. So when Amazon patents "one click shopping" and I write open source software with different libraries to complete the same task, they claim patent infringement, which is nonsense. They should be able to patent a particular method, which is really just their code, not an end result. Even then it's redundant, as it's already protected by copyright.
Large corporations do not want patent law sane, because it's their multi-million dollar playground, and they can crush innovation and startups by simply filing a few law suits. The first nation with decent infrastructure to fix their system or abandon it will lead the way into the 21st century.
tl;dr: The ability to patent end results instead of particular methods is why the current patent system is a failure.
If the whole point of patents is to foster innovation to benefit society, then they should ideally be means tested to give people as short a monopoly as possible whilst still allowing them to return a profit with respect to their investment in R&D.
That sounds better, but you're missing the big picture. No source code.
When I buy a book, I can extend the work quite easily after it is in the public domain. I read the book, come up with my own ideas, and write a new one.
When I buy Windows XP, I can...disassemble the code and look at it. Have fun trying to extend it or fix any bugs. And that's assuming a shorter copyright term. The copyright on MS-DOS 1.0 expires in 2102. At that point we'll be able to copy the binary here and there, assuming any binaries can be found. The source will probably have been long gone and no hardware that it supports will likely be around either.
What a nice deal for Microsoft! They get a government monopoly on the exploitation of their works and all they have to do is give you an opaque version of the work that won't be useful for anyone when the copyright term finally expires.
We need at least source in escrow with the Library of Congress. When the copyright term runs out, the source is published. I'd rather require source publishing for any copyright, but I don't think that's going to fly.
If software is unlikely to be relevant after 20 years, then what is the danger of a 20 year patent?
(speaking for myself), I feel that the biggest problem is when a collection of intellectual property is bundled into a standard (such as H.264), but despite the valiant efforts of standards development organizations to require their participants to document their participant's intellectual property in a standard, you can't really ensure that "submarine patents" by non-participants are not accidently infringed upon, and frankly even the SDOs don't have any real police power over participants that either on purpose or accidently don't disclose IP.
I feel that some organization (perhaps ANSI, or just the PTO) should be responsible for designating the most valuable standards (such as "national standards") for "mandatory IP declaration". This would start a process where within a set time (1-2 years), all intellectual property owners would have to "put up or shut up", i.e. declare that their intellectual property is covered by the national standard. If they don't declare during the limited time period, they forfeit their right to sue for infringement on implementation of the national standard.
Real businesses do not generally have a problem licensing known intellectual property protected by patent. It is the unknown that is the bigger risk, and makes adoptions of new standards slower (I've personally seen this at a previous position).
Oh, I agree. I didn't miss the GPL-3 at all. You are perfectly correct. Source in escrow sounds great to me! I merely established what I thought was a reasonable time period for protection of copyrighted works, which differed from your own by a fraction. ;>)
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
Most source code is pretty much guaranteed to not build tomorrow, you'd have to capture every single dependency all the way down including libraries and even hardware. Today we have gate A20 - tomorrow, maybe not. Painting software as a just a *.c file is disingenuous.
Maybe we can escrow 50% of the operation of the system if we're lucky but I don't think you'll persuade nVidia to turn over their GPU designs, nor will you persuade Creative Labs to turn over their DSP and interface designs.
You do realize it takes at least 5 years just to get something patented?
So by the time your thing is patented, and you've paid up to $100,000 to do so worldwide, it's not worth anything anymore?
Nice.
It would likely be a big improvement, but it doesn't mean that it fixes the problem. Also, doing so would almost certainly involve clearly legitimizing software patents.
This is my signature. There are many like it, but this one is mine.
software is just settings for the CPU. No patents.
People who advocate the idea of Patenting will say that without the protection of Patents people do not have the incentive to innovate.
I can see some validity of that argument on things like machinery or even on fancy gadgets.
In this world where copycats are abound if there is no legal protection then anyone can copycat anything anybody else come up with.
But in software I don't see it.
I mean, the software we are using - the apps - are made up of COMPILED source codes.
All those so-called "innovations" on the software sides are mostly on the source-code side - although there are Patents that apply to the "GUI" thingy - but all in all, the source-code Patents do not make sense.
I mean, there are ways to protect prying eyes from source code thefts. There are encryption scheme that can disable anyone trying to disassemble an application.
It's not like a machine where people can open up a machine and see the inner working parts.
An app, on the other hand, if someone were to copycat that app they have to re-write that app from scratch.
But this is only my 2 cents.
Thank you for reading.
Muchas Gracias, Señor Edward Snowden !
All legitimate patents should be 10 years or monetary recuperation, whichever comes first.
Software patents (they don't fall into the category of legitimate) shouldn't exist.(neither should patents on processes, chemical compounds (i.e drugs), etc.)
Patents should not be issued for incremental improvements (which is what most mechanical patents are these days).
All patents applications should be required to include a tangible, functional example of the patent.
Only individuals should be allowed to own patents(with multiple authors it would be right of survivor-ship). Not corporations. Not educational institutions.
Patents should not be allowed to be sold or traded, licensing is fine.(everyone listed on the patent should have licensing rights, they could all sign an exclusivity agreement)
Patent authors dieing results in the patent's immediate expiration.
People need to start patenting dumb software ideas; not just the great ones.
How many $obnoxious_sound or $picOfTheDay apps do we really need? Some dumb schmuck needs to claim those ideas and put a limit on entrants to that cesspool.
> Some say that patents just plain don't make sense for software, which is such a dynamic technology.
No, software patents don't make any sense whatsoever.
Patent, definition: apparent, visible (to the public).
Originally, a license was issued for some inventor to stimulate the disclosure of an invention. S/he could risk opening it, because the government protected the invention against cheap, unlicensed copies. So, the whole idea is to make things clear, visible, apparent, known to all -- to foster the free communication of ideas, while granting the inventor a way to explore the invention.
Now, couple a software application and a nail: one can patent the nail, but not the ideas (i.e., methods, data, knowledge, algorithms etc.).
These corporate monkeybrains, unable to innovate, want to grant the possession of ideas (as if it were a viable concept) and forbid the whole of mankind to enter their walled garden.
I say to hell with such an absurdity -- this is so moronic, it is wrong on many levels: philosophical, cultural, humanistic, ethical... perhaps it's even wrong from a religious POV. Alas, when we see the whole picture, it probably is wrong from an economical POV, too.
To sum it up, IP as a concept is as crappy as it can be.
Generally, I am against software patents, however I do believe that there are some software innovations that should be patentable. My feeling is that they should be held to much higher standards of innovation, non-obviousness, and utility than current software patents are. I say this as the holder of a software patent related to adaptive systems that allows compiled applications to alter the structure and behavior of application classes at run time without writing code or recompiling the application source code. I honestly believe that the innovations I invented (and are in use by most semiconductor and similar high-tech manufacturing enterprises to enable them to tailor off-the-shelf manufacturing software to their particular enterprise without writing and integrating new code) meet the same standards required of physical devices and such. That said, most of the software patents I have read about, or studied in detail, are totally bogus and should have been laughed out of the Patent and Trademark Office. Period of time for software patents? 10 years max in my opinion. 20 years is absurd. As stated elsewhere in these comments, software innovations occur too rapidly to lock up some concept for that much time.
Sometimes, real fast is almost as good as real-time.
My suggestion is to make Patents variable.
Patents should be judged on 2 things:
- the amount of effort that went into developing the invention
- the degree of innovation
Based on those 2 items, you would:
- Have variable durations - 1 to 20 years.
- Have variable licensing levels, set the appropriate fees. $10 to $ 1 billion
So, a trivial invention created in a morning would be awarded 12 months and a low fee.
A major ground breaking cancer treatment that took years to develop would be awarded 20 years and large licensing fees.
This creates fairness between effort and reward.
Mod this up. We don't have the flexibility to alter our domestic law in this manner any more. But, as parent suggests, we could implement some kind of utility model system, aka "petty patents" that are shorter. Whether we can do it and grant them within a reasonable time is a different question...
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
While I do feel that most software patents are absured, there are occasionally some really good innovations and implementations. What if the US put a cap on the number of software patents allowed per year. Say 50. The USPTO takes all of the software patent applications for the year, ranks them according to most ingenious and the top 50 get their five year patents.
Give an option:
Copyright as a package - or Patent a piece or action
But NOT both. Pick ONE
I am not an expert in patent law, nor am I a lawyer, but wouldn't it be possible to build a community website dedicated to the posting of patentable software ideas in a well described and categorized fashion in an attempt to always have prior art? It seems to me that with all this crap we should already have a website like this describing a mechanism for automatically syncing email on a watch or time-keeping device, etc., etc. so that anytime a company tried to go after somebody with patents there are clear examples of prior-art for any obvious software algorithms.
A compromise is where you get some of what by giving up 100% of your principles.
Software is just not patentable. It can be part of a patentable invention, but by itself it is math, just one of the possible permutations of a computers bits.
It took a real world war to end the airplane's patent wars. - Fâché Rouge -
Almost no software depends on actual specific hardware, they depend on general well documented interfaces. People don't write games for Nvidia cards, they write games for DirectX.
Sure, we'd still have to implement compatibility layers, but imagine how extraordinarily easier it would be to write Wine if we had both the source of the programs and of Windows.
Dilbert RSS feed
I fear that it's come to the point where the only real solution is reducing software patent troll life spans.
And that's a joke, of course.
Really.
Being unable to compile the code as-is would be a tiny setback, compared to the potential knowledge gained from studying and modernizing it.
Prime example: look at any ID Software source code release (Doom, Quake). These games have been ported, upgraded, remade a hundred times over. Did this hurt the company ? Or did it create a huge following of dedicated gamers and modders and source hackers, some of which have gone on to create games of their own, or even work for ID producing great content.
And so what if Intel finally grows a pair and ditches the legacy A20 ? If we're too lazy to fix the code, we'll emulate the stupid old thing. And Creative Labs is fantastically irrelevant, has been for over a decade. They've tried to cheat death with that EAX garbage, but really there is nothing mysterious anymore about outputting sound from a computer. The only secret in that code is the number of bugs their Singapore-based dev team manages to conjure up on a daily basis.
I'm not saying everything should be forcibly open-sourced, but I do firmly believe these companies would do just as well if they concentrated on making their product better than the competition's, rather than relying on secrecy to protect their bottom line.
-Billco, Fnarg.com
The Australian Patent Office - IP Australia (disclosure: I work there) back in 2001 introduced another form of IP called an "Innovation Patent" to address this need. An Innovation Patent differs from a normal patent in the following ways:
Sounds pretty much what you're after?
Instead of having a hammer, we'd be slamming in wooden spikes with rocks and living in tents.
Or we'd be paying $300 dollars for a hammer just like the government.
We don't have the flexibility to alter our domestic law in this manner any more.
Sure we do. We can withdraw from TRIPS, Berne, etc. at any time. No one is forcing us to remain in these agreements. We just need the political power to get the country doing what is in the best interests of its people, rather than a privileged few.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Let's pick a nice, round number to reduce it to. Zero is a nice, round number.
Reducing the term to anything more is just putting a band-aid on a festering boil. Until the USPTO gets far more selective about what is considered patentable, and the courts get far more selective about what is considered infringement, there's no empirical way to tell whether software patents could have any value at all. As it is, they are clearly of negative value.
The biggest problem with software patents isn't the software part -- it's the patent part.
We need to seriously examine our idea of what is patentworthy and what fails the "obviousness" test. Lots of things are patented which really, really should not be patented. For instance, I have a digital SLR made by Olympus. Olympus uses a unique sensor size (a little smaller than Canon and Nikon), has decided their standard distance from that sensor to the back of the lens mount, and has built a bunch of lenses tailored to this. There is nothing magic about these values -- they're just engineering choices Olympus made. Yet these numbers -- the sensor size and the sensor-lens distance -- are patented. This is absurd. There's no invention here, just some choices that a bunch of engineers made. Canon and Nikon made different choices.
Likewise, people patent obvious solutions to problems, or solutions that have no particular inventive merit to them. This is just bog-standard engineering. Why is "multitouch" patentable? It's an obvious way to interact with a touchscreen, just like holding down two keys rather than just one at a time is an obvious way to interact with a keyboard.
Clean out all the bullshit patents, patents on things that shouldn't be patentable, and then we can talk about software patents. The great harm caused by software patents isn't really related to their software-ness; it comes from their stupidity. Slashdot just likes to talk about moronic software patents since we're software people, but moronic hardware patents are just as bad a deal.
is that real ? KVM Switch
I had a meeting once to develop someones patent (they had been granted the patent already). I spent the whole time confused until I realized that they had developed none of the technology they had patented, wanted me to write a demonstration demo - a look and feel front end that didn't actually do anything under the hood but demonstrated the idea. I told them they were hiring me to draw a flying car as they had patented "personal transportation vehicle (car) that operates in three dimensions" but hadn't actually solved any of the technology at all (purely for description, their undeveloped technology was not a flying car). Anyway ... they were friends so I said "sure" thinking their plan was probably to wait until someone actually developed the tech and then sue and suspecting, correctly as it turned out, that there was some basic computing issues involved and they were probably going to be up against prior art / patents held by the big boys. I described visions of platoons of lawyers hitting the beach but we did the little demo anyway.
I lost touch. I wonder if they're suing someone in Texas right now.
Physics is like sex: sure, it may give some practical results, but that's not why we do it.
I have spent a lot of time thinking about the problems with Software and Business Process patents and I have come to the following conclusion:
You should be able to file for a patent pending once you have the idea or process documented and that you plan on using in a product or products. Once this is done you have a window of time (1 or maybe 2 years) in which to actually produce a product or service that uses the idea or implements the process in the real world. Then you can file for an actual patent that once granted would only be enforceable for a three year period.
Basically if you don't actually use the idea or process you lose any claim to it. This would eliminate the patent trolls and companies which just file patent application after application in order to prevent any one else from entering the market with a competitive product or service.
I am already working for "software" patent reform. I live in Minnesota, and this morning I visited with Senator Franken's office, discussing "software" patent reform. Sen. Franken is also the Chair of the Senate Subcommittee on Privacy, Technology and the Law, so this is a topic he's paying attention to.
The America Invents Act is already in progress, so the reality is that Congress won't have the appetite to pick up the patent topic again in the next few years. So I'm afraid that the window has closed to get a law to enact "software" patent reform. Temporarily, anyway. This is unfortunate, since AIA doesn't really address any issues related to "software" patents or patent trolls.
However, it is possible to have a procedural change made with the USPTO. So I'm working that angle now.
To do that, we need to build popular support, enough voices that the Subcommittee will hear. As cheesy as it sounds, that means we need your help to contact your Senator's office and voice your opinion. Seriously, call their office, write them a letter (handwritten carries the most impact, but typed will do), or visit them in their office. Ask your Senator to push for "software" patent reform. Have some examples of "software" patents handy, and feel free to make a suggestion for how to fix the system. I think the citizen review method is a workable option. I've been discussing this topic with Sen. Franken's office for a while now, so if you don't have a particular suggestion to offer, ask your Senator to see what Sen. Franken is up to. I'm not kidding, they do listen to that. You can reference Katie Topinka, in Sen. Franken's Minnesota office, as the staffer who's closest to this. I'm working with her on this (and hopefully she won't mind me mentioning her name.)
If you live in Minnesota, New York, Rhode Island, Connecticut, Oklahoma, Utah, or South Carolina, note that your Senator is already on the Subcommittee for Privacy, Technology and the Law. This is a topic they will listen to.
The best advice I have heard in politics is that it's your politician's job to listen to you and to take that back to Washington to get it done. I'm lucky that my Senator actually does this. That's why if you don't feel your Senator will listen to you on "software" patent reform, you need to send them to Sen. Franken, because he will work on this. And Senators do talk to one another, even across the aisle.
It often takes 3, 4, 5, or more years just to get the patent granted from the Patent Office.
I'm split on this issue. I've seen a few software patents where I've thought--"these inventors really did deserve a patent." But, then I've seen dozens of others where I've thought--"this is ridiculous." Perhaps, the answer isn't patentability of software but just giving the Patent Office better resources to examine correctly and grant patents that aren't super broad and that are actually novel.
Lots of talk about changing the rules here, with patent reform, etc. Seems like the biggest problem is just patent quality--and to fix that you need more resources at the patent office, better and more examiners.
If your premise is that the dynamics of software is faster than other technologies, then this only makes sense if you can streamline the patent examination process to grant software patents in an average of 6-9 months. This also implies publishing the applications after only 2 months, and acting on public input in a month or less. An interesting idea, but not feasible with the current USPTO.
Copyright disallows people from copying ideas that others thought of. Patents disallow people from using ideas even if they thought of them themselves, if someone else thought of them earlier. Some people think that copyright is a moral right. I don't think so. But even if we were to assume that copyright were a moral right, I can't see how anyone could honestly think that patents are. It seems to me that if we accept that people have a right to think of ideas themselves, and also accept that we should not punish people on the mere presumption of guilt (i.e. we shouldn't assume that someone has copied an idea if it's possible they thought of it themselves), then there can be no basis for considering patents as a moral right.
If there is any basis for patents at all, then, it must be, like tax, justified as a democratically agreed upon imposition on liberty as a means for promoting the greater good (even if we assume copyright to be a moral right).
By using clean room design (starting with an empty code base, and ensuring everything added was written in-house), it is possible for a company to ensure that software they produce is not covered by other people's copyrights. This is not the case with patents. The only way to determine that software is not covered by other people's patents is to check every part of it against every patent in existence.
In the case of pharmaceuticals, patents do significantly promote innovation, and a patent search is realistically achievable, so pharmaceutical patents do promote the greater good. In the case of software, patents do not significantly promote innovation, and patent searches are generally impractical, so software patents do not promote the greater good.
Too many "patents" these days fall into the patenting of ideas - it used to be in order to get a patent you had to have an invention that actually did what you are patenting. Now they are patenting things like "teleportation" and other pie-in-the-sky ideas and trying to apply them to everything. This is clearly an abuse - and software is physicalized ideas - so they shouldn't be allowed. That would be the largest boon to the economy and free up huge amounts of people to invent and innovate - right now the "little guy" has his hands tied and if he does well, some slime comes out of the wood-work with their 10 year old patent to try to rob him.
Society today is becoming exactly as portrayed in Atlas Shrugged and I find it disgusting...
The problem is the breadth of the patent. "Hey dude your code does something kinda similar but not really but hey I to have a variable called "counter" so you violated my patent and now I will send my army of 100 million dollar lawyers at you and you cant afford to do anything so you LOOZE"
development costs are a small fraction of the profits involved, and the 'manufacturing' costs are small to nil. Lets not forget what patents are for: encouraging invention. We don't need to encourage people to write software. It's so profitable they'd do it anyway. Hell, millions do it for free. We need to encourage people to make drugs and machines et al because the investment costs are much higher. I'm writing software right now, and I'm doing it with the same tools and resources as the big guys (well, not quite, I got a day job). I couldn't just jump into drug research or chip manufacturing...
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Reduce them to one day and they still get 24 hours more than deserve.
The length of the term is one of the problems, but at a practical level I would be more concerned about:
- Patents that were not obvious when they were invented because they depend on infrastructure that didn't exist them (eg. ubiquitous Internet access, smartphones, fast processors, cheap storage etc.) so would have been useless, but are obvious and useful now.
- Patents to solve a problem that the holder of the patent created, in order to protect a particular file format, protocol or suchlike. Microsoft's patent on long file handling in VFAT would be an example of this.
make it an infinitesimal short periode!
Is it really practical to have patents (or copyrights) with shorter terms than the lawsuits required to enforce them?
Employing PatentSim, a multi-user interactive simulation of patent and non- patent (commons and open source) systems, this study compares rates of innovation, productivity, and societal utility. PatentSim uses an abstracted and cumulative model of the invention process, a database of potential innovations, an interactive interface that allows users to invent, patent, or open source these innovations, and a network over which users may interact with one another to license, assign, buy, infringe, and enforce patents.
Data generated thus far using PatentSim suggest that a system combining patent and open source protection for inventions (that is, similar to modern patent systems) generates significantly lower rates of innovation (p<0.05), productivity (p<0.001), and societal utility (p<0.002) than does a commons system. These results are inconsistent with the orthodox justification for patent systems. However, they do accord well with evidence from the increasingly important field of user and open innovation.
Software patents should include the actual SOURCE CODE the patent covers. This is the ONLY way they will be comparable to their hardware counterparts (which allows someone to use the implementation patented after the patent has expired).
A software patent without source code documenting the actual implementation, is little more than a protection-racket.
House or Senate?
Because if you're not in Congress, and I'm not in Congress, and neither of us can afford to buy a Representative or Senator, why are we fantasizing that our opinions matter?
If you were blocking sigs, you wouldn't have to read this.
It is worth noting that the original patents were essentially a monopoly granted by a Monarch - such as Henry VI's grant of a 20 year patent to John of Utynam in 1449, which granted him the exclusive rights to a new method of the manufacture of stained glass.
Modern patents came about because of the Guild system. In this system many practical designs / methods of solving problems / ideas were never made public but became "trade secrets" which were only told to other members of the same Guild. This gave the Guilds a lot more power and influence than the Governments of the time were willing to give - so the idea of patents came about.
The idea was that when you were granted a patent you gained the exclusive rights for a limited time to that invention, but you had to make the design public as part of the application. That way when the patent expired anyone would be able to use the invention. As the patents were given out on a "first come, first served" basis this meant that the trade secrets that gave the Guilds their power became public knowledge.
Handled correctly patents can be a good thing - in that they ensure that knowledge is (eventually) distributed. But there has to be a limit on exactly what can be patented, and for how long. Obvious ideas should not be patentable, but in the world of Software they often are. Remember the "One Click" patent that was used against Amazon (and no doubt against other companies too)? http://en.wikipedia.org/wiki/1-Click
The very fact that this happened (and that incidents like this continue to happen) means that the patent system needs reforming - and the obvious reform to fix this issue is to either drastically reduce the lifespan of patents for software or to make software unpatentable and rely on copyright to protect software..
As an example, 5 years ago the iPhone did not even exist on the market. Today it is 4 generations ahead of the original, the OS 5 generations, and phones of the original's caliber are considered extremely outdated and nearly useless (no 3rd party apps, slow CPU, 2G, etc) to the point that you can pick them up on eBay for $50 when they used to sell for $400.
Unless the lifespan is cut to something reasonable like 12 months, then software patents have no place. The whole point of patents is supposed to be to encourage innovation. The reality however is a) There is innovation aplenty in the software world regardless of patents, b) In the software world, the truth of the moniker "innovate or die" is a lot more of an incentive to innovate than software patents.
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So it is also with patents (and not just software patents). After reading about patent lawsuits for years I have come to the conclusion that the whole patent system should go. I doesn't serve the interest of the majority of the human race. Barring that, shortening the life span of a portion would be a tiny hen step in the right direction.
A bad analogy is like a leaky screwdriver.
Well, Berne Convention (and Paris Convention) compliance are required by TRIPs, so denouncing either one would involve violating or denouncing TRIPs - and as TRIPs is a crucial part of WTO membership, we would probably also have to leave the WTO, or face enormous retaliatory trade sanctions for non-compliance. None of that is going to happen, and in reality leaving tho WTO is probably not in the best interests of the country.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
Take out the math and there is no invention.
Seriously. It's all very well for us to write letters. But we're busy trying to feed our families and keep our heads above water in this difficult economy, and cannot spare much time for that sort of thing, particularly when it is so likely to be wasted effort. If I'm going to take the time to write something, I prefer it to be available to a large audience, not an audience of 1 who may well be bought. As Lessig complained, our system is unable to reach the obvious conclusion that intellectual property law has gone too far. Instead, our representatives have sold us out time and again to special interests. If more than 10 years of opposition to and derision of things like the "Mickey Mouse Protection Act" have been unheard or unheeded, that's not our fault for not writing enough letters. Why don't they come read these discussions on Slashdot? (Maybe they do already? Doubt it.) Here we have a group of people who are more closely concerned with the problems posed by patent law, having a good discussion full of good examples and covering many aspects and ramifications. Representatives could also participate, anonymously or not, as they please. They could even try us with an "Ask Slashdot" article.
On-line forums are the town halls of the 21st century.
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
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The purpose of patents is to "promote the useful arts and sciences" . That's in the Constitution- if they don't DO that, then there is no "right" to a patent. Patents aren't there so people can profit, they're there to serve a societal good, as defined by the Framers. In the case of software, we know for a fact that patents are NOT needed for software to be created. The virtual entirety of all software prior to 1994 or so- including operating systems, databases, word processors, the internet- everything you use on a regular basis and forms the backbone of computing, was invented without patent incentives. The strongest proof possible is an existence proof- the thing stands there, so the argument over its existence is done. So it is with software and the need for a "patent incentive". No patents are necessary to incentivize software development. The fact that corporations have their valuations deeply intertwined with "intellectual property" in the form of software patents is not an argument for their legitimacy. That's just another form of Too Big To Fail. We've built this mess, not it must be sustained no matter what ! It's too big to permit change ! Software patents are a tax on development and a drag on innovation- both prices consumers must bear. They favor existing billion dollar players- who can afford the millions to acquire and defend them- over entrants and reduce competition. We're a CAPITALIST country, not a CRONY CAPITALIST country. The capitalist system is to work for the benefit of the People not corporations. Obviously, people get confused on this point. Systems that align themselves with specific business interests and arrange incentives to benefit those interests are not capitalist- they're crony capitalist plutocracies.
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Okay, can someone who knows answer this?
On the likes of a "patent troll", can a "patent stalker" exist? Someone who would wait until a patent has expired, and then file a patent for something quite similar, but arguably different? How does this work?
The three laws of thermodynamics:(1) You can't win. (2) You can't break even. (3) You can't even quit.
http://tech.slashdot.org/comments.pl?sid=2225174&cid=36390518 Because it shows you for who & what you REALLY are, Linux troll?? Absolutely. Caught red-handed, with your pants down troll, lol...
http://tech.slashdot.org/comments.pl?sid=2225174&cid=36390518 Why'd you avoid that SIMPLE QUESTION, troll? Perhaps because it shows you for who & what you REALLY are, a Linux troll?? Absolutely. Caught red-handed, with your pants down troll, lol!
I am inventor on 30 or so patents, with a few more in the pipe. My (ex-)employer owns the rights to these. Neither of us has gained any value form these patents. My personal experience is that patents lead to the company getting sued, and I get deposed.
The process for granting patents, and the legal process for deciding infringement cases, are both horribly broken.
http://tech.slashdot.org/comments.pl?sid=2225174&cid=36390518 Drinkypoo's so moronic he can't answer a simple question, and instead, runs from it. He talks about music, but he isn't willing to face the music (of his own trolling stupidity).
See subject drinkypoo, you trolling goof. Goofs like you couldn't program a computer to save your life, and you want to see software patents abolished? Of course you do. That way, the likes of you can steal others' code and get away with it, claming it as "your work", and never mind that someone put their time and effort into it. You're an incompetent trolling imbecile that isn't even qualified on the subject of the computer sciences.
Do you even have a CSC degree? Not afaik.
You can't even see her point that the piano roll IS the software for the player-piano: It tells it what to do, step by step, like computer software does.
You said it's a "superficial similarity"? That's you admitting she's right and trying to "soft-soap" your having to admit she is.
You're so full of it, and unqualified on this note, it's pitiful.
Like was said to you earlier? Go get a CSC degree, and get back to us then, ok noob?
Also, nobody cares about the computer having more possibles, she made the point that a player piano acts on instructions, just as a computer does.
End of story!
So give up, you don't have the background or experience in computer science to be making judgements here, you underqualified loud mouth nobody. Your trying to argue your way past her analogy is only making you look even more stupid and noobish than ever. Get over it, you FAIL!
Jane Q. Public: Drinkypoo is just a damn blogger, that's all. He has nothing to his credit of ever having done anything worthwhile of note in the computer sciences field, so don't even bother with him. He's nothing more than an underqualified dolt nobody who trolls others on forums.
OK, not to pull rank, but as person with degrees in math, physics, & computer science, I want to point out some Patent Law 101 concepts. Where you guys take them is your business, but hopefully, this may discourage some of the sillier postings.
1. Software is not "mathematics" unless one defines "mathematics" so broadly as to include the set of all inventions that can e expressed as algorithms. That can be done by using certain functions to translate processes into equations. But doing so would place a large portion of all existing patented inventions within the definition -- obviously not something the Founders intended. "Mathematics" (whatever that means) can be an element of a patentable invention. The limitation is that one cannot patent a "law of nature," such as E=mC**2, expressed as a mathematical equation.
2. Computer software is distinguishable from piano rolls, which are quite rightly considered transcriptions of artistic expression (and thus within the scope of the Copyright Act). Unlike piano rolls, code is an implementation of an algorithm, a process or procedure that has utility. Conversely, you can't copyright a recipe.
3. Processes and methods are clearly proper subject matter for patent protection, within both Art. I, s1, clause 8 of the Constitution, and s101 of Title 35, which _expressly_ states that they can be patented. That has been with us from Day One. Again, a very large number of method have always issued, especially in the pharmaceutical industry. In fact, it's possible to patent an invention by merely describing how it is made -- not by describing the invention itself; this latter example is important in non-determinstic areas of science, such as biochem, where it can be impossible to fully describe the result of a process.
4. The patentability issue for software does not revolve around breadth. It has to do with reduction to practice. A patentable invention must be capable of expression in a reproducible physical form. Important CAFC cases have for decades held that the movement of electrical signals across wires can be considered a physical implementation, although it's not clear just how broadly that concept can be applied. The most common precedent holds that software that effects observable effects -- such as moving an icon on a monitor -- satisfy the reduction to practice requirement. Despite all this, these issues are still far from settled.
5. The trend in the Supreme Court, one that has held right through Bilski, is to avoid hard-and-fast rules, giving the PTO as much freedom as possible to use its own judgment when applying the law and CFR regulations to the facts of each case. Given the enormous breadth of subject matter that flows through the office and the elaborate appeals mechanisms available in patent cases, and the ability of Congress to tweak Title 35 as needed, this isn't a terrible solution.
6. And before there's anotherr glut of "the patent system is broken!" postings, I have to note that, despite the fact that the system does have problems, the mere existence software patents is not an enormous problem. Very large numbers of software inventions are patented and only a tiny number -- less than ten in the last 20 years to my count -- have been questionable. Those have garnered a huge amount of attention in part because they affect things that are part of the lives of the average Joe on the street. But those Joes generally have no idea of the true issues at play, nor are those issues generally reported correctly in context. In order to understand the scope of a patent, one has to know how to read claims. Simply because a patent includes an element that seems unpatentable -- such as clicking an icon to execute an HTML link -- does not mean that the owner can demand royalties from every company that lets users click icons to link. Patentable subject matter must include some element that is new; and only those elements may be infringed. Aggressive patent owners (and trolls) may try to obscure the scope of the pat
Get real. What the hell does Republican/Democrat have to do with this? This isn't "call down your favourite party to hate", it's a discussion on PATENTS. Grow the fuck up.
copponex, grow the hell up. You sound like a gawdamn child.
Theaetetus, you're correct.
I'm not american, so don't even try that bull with me.
Cheers, DH.
Nothing about your nationality prevents you from being as stupid as a Republican. Your failure to grasp this concept is proof in and of itself.
Also, thank you for not providing a claim representing a particular method that you feel is worthy of a patent. You are learning a lot from your mentor, which is to say, you're learning to be proud of very little. I'm sure Theaetetus is reveling in his new-found protégé's ability to say jack shit and feel great about it.
Republican/Democrat means nothing to him dipshit. You are sheer ignorant. Learn to read, you obviously can't. The only thing that matter is the claims. He told you repeatedly to read that and you ignored him. These two stated facts, you are no better than a member of the KKK spouting pure-opinion.
you are no better than a member of the KKK spouting pure-opinion.
That was actually quite funny. It's unfortunate that you don't know why.
The government should not be in the business of granting and enforcing private monopolies. The only economy that benefits is that of lawyers and other parasites.
"When in doubt, use brute force." Ken Thompson