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Software Patent Reform Happening Now
Jim Hall writes "Many of us in IT recognize that software patents are a bad idea — you can patent just about anything if you put "on a computer" at the end of it. But now we can finally do something about it. Congress is considering the America Invents Act — your Representatives are very interested in hearing from you. Also, the USPTO is inviting public comments to change the system (you need to file by June 29, 2011.) I've written a blog post about software patents with more, starting with a primer of copyright and patents."
For the better or worse ???
This is the same legislature that has basically extended copyrights indefinitely, I'm sure this will end well
So write your congress critter now and tell them to scrap software patents!
No matter what should be done with software patents. What will be done is ensure the profits of the biggest lobbyist there, and that won't be abolish them, at best will make harder to non-lobbyist to fill them.
It is not software patents itself that is a bad idea, it is that math (or anything else) is patentable just because it is executed on a computer that is a bad idea, which do cover many software patents.
...you can patent just about anything if you put "on a computer" at the end of it.
That is by design. If that wasn't a separate patent, then Ikea could hold patents that affect HP devices.
I'm not saying software patents are good, I'm strictly saying that the 'put computer at the end of it' rationale actually has some basis in reason.
"I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)
Software is just not a patent-able matter http://abstractionphysics.net/pmwiki/index.php
1. Find who your Senators / Representatives are.
2. Buy some decent letter writing materials. A physical letter carries a LOT more impact than an email.
3. Write the letters without profanity or insults. Include your contact information.
4. Send the letters to your Senators / Representatives.
5. Get your friends to write similar letters. The more letters they get, the more they will focus on this issue.
6. If an important vote is coming up, place a follow-up call to remind them how important this issue is.
The people most INVOLVED with the political process are the people who shape the political process. Corporations can pay people to devote time to influencing such decisions.
They'll happily take your opinion but then do what the guy with the most money wants them to do.
The RFC by the USPTO is limited in scope to restructuring the re-exam process for increased efficiency, quality, and throughput. Comments on this process will need to be framed by the current statute and case law built on the statute, because the USPTO cannot change the statute by itself. Instead, this is talking about changing internal procedure as well as possibly changing the regulations (37 CFR).
for filling patents.
This law will make things worse. Also, this will make it seem like a problem has been addressed, so getting the problem looked at again will take another 30 years.
>Your Representatives are very interested in hearing from you.
No... no they're not.
They are interested in how much money they can get from their campaign "donors" to vote one way or the other.
--
BMO
If you're going to write a primer on patents, at least try to make it sound like you know what you're talking about. Getting basic facts wrong about for example term length makes you look silly.
IMHO - the best thing would be to say lifetime of patents == lifetime of copyrights
Apologists might rationalize the shorter patent term thus: Unlike patents, copyrights in theory have an independent creation defense. Proving an allegation of copyright infringement involves proving that the alleged infringer had at some time had access to a copy or performance of the plaintiff's work. This theoretical defense does break down, however, in the case of musical works played over radio and over loudspeaker systems in grocery stores, where someone can effectively force access to a work on someone else.
how do you keep someone else from prevent you from your own work
Defensive publication. Google it if you want..
with this shit about dumping inventor rights over first to file
As I understand it, a switch from first-to-invent to first-to-file only affects conflicts of patent vs. patent, not patent vs. published prior art. An invention that is not novel would still be not patentable, and an invention described in a publication in the prior art would still be not novel.
Yes, patents are often written to be overly broad. Sometimes that's a hedge against a later change in technology, so the patent still is applicable in some way. Other times, it's just to get the patent accepted - if it sounds hard, it must be "new", right?
Richard Stallman wrote a great article about that once, about how they intentionally write these software patent applications to be obscure. I don't see it on my blog, so it must be queued for next week (I post one item a day.) Check back next week.
But on the flight planning patent - RunwayFinder was a free web site run by a guy out of his home. But FlightPrep sued, claiming infringement on their patent. A big company against one guy ... not surprised he shut down, rather than lose his home in an expensive lawsuit.
your Representatives are very interested in hearing from you
Is there anyone out there who still believes this?
Le français vous intéresse?
I'm VERY interested in hearing why the American Medical Association and IEEE are against the bill. Perhaps someone can enlighten me?
This is a fourth rebranding of the proposed Patent Reform Act. Deckchairs get rearranged but there is little substance to all this and none of the driving forces have computer users in mind.
Some procedures get changed to make X more efficient and to improve quality sometimes for Y.
None of this solves the software patents problem in the USA. The software patents problem *isn't* caused by some bad apple applications slipping through the procedures. The problem is that software has to conform to standards (interfaces and data formats), and these are being covered by thickets of patents.
If there's 900 patents on something (i.e. mpeg), then weeding out the worst 10% changes nothing.
We need abolition, and we need Congress's support in this. The current Supreme Court has shown itself to be reluctant regarding substantial changes to law, and even if we won there, if we have no support in Congress then our victory would be wiped out by a legislative change.
Yes, do work on this proposal. Work to get software clearly excluded - you have to keep trying if you want to have a chance. But don't get overexcited. This is unlikely to be a big turning point - that is, of course, unless you get active and make it happen.
http://en.swpat.org/wiki/The_Patent_Reform_Act_(USA)
http://en.swpat.org/wiki/Harm_to_standards_and_compatibility
http://en.swpat.org/wiki/MPEG_LA
Expert in software patents or patent law? Contribute to the ESP wiki!
Seriously, this would be like if you looked up an article on the New York Yankees and got to read paragraph after paragraph on "top Yankee choke jobs over the years, and why they still suck". Trying to perpetuate the myth of the lone inventor struggling to make payroll while fending off multinational corporations and their big law firms. Of course the reality is the reverse; only deep pocketed corporations can afford to pay off the patent trolls and still make money selling tech products.
For anyone who thinks Wikipedia is a complete replacement for the likes of Encyclopedia Brittanica, here is an example of why it can't always be trusted.
From reading the Wikipedia article, it is pretty obvious the Intellectual Ventures(Read: Patent Troll Incorporated), is leading the opposition to this bill. If patent trolls like IV oppose the America Invents Act, then that seems like a pretty decent heuristic to determine that the AIA is a good idea.
Why should you be able to patent it for thinking of it? With hardware, you need to implement it, and if someone can figure out a better implementation they can patent that. With software, you can't, and that pretty much stops innovation in places that have software patents.
Now send yours. Click the "inviting public comments" link above and email the patent office. There is an address in the link.
It's one thing to sit and bitch about the state of things. You have an opportunity to fix it, right now.
So do so. Be heard!
Weaselmancer
rediculous.
Please don't feed the troll.
Weaselmancer
rediculous.
Another way to look at it is that within the next 17 years nearly everything will be public domain.
I once took an excursion to Reddit, and later HN. Unlimited up/down voting sucks when dealing with a hive-mind.
software patents are bad, yet copyright for music in perpetuity, handed down to heirs or held by companies, is good?
After years of fighting Mr. Ballard at the federal Patent Office, in court and across a negotiating table, the banks went to see one of their best friends in Congress, Senator Charles E. Schumer of New York, who inserted into a patent overhaul bill a provision that appears largely aimed at helping banks rid themselves of the Ballard problem. The Senate passed the bill easily in March.
Banks do not like “business method” patents.
Forgive the bitterness below.
"Write letters, call, visit". Really?! You tried hard to write a good story so it's like that Dr. Who episode that double-pulls what the other guy thinks for a combined result of Bad.
It's all Intellectual Property. (Cashew gallery, please hold the comments.) Why are patents so thunderously different from Copyright when we're just starting to see the crossovers such as "WantToPatent Methods" stuff being rendered as Art/Math/Other.
Let's work with your comment above. "How will a Senator or Representative know what are the important topics their constituents need addressed?" You mean by tweeting it with a pair of pantyhose attached? One tweet (plus maybe dupes) *ended a congressman's career*. What constituents demanded that? Yet to get their attention to vote the way we hope, we have to go LITERALLY Get On Their Lawn? (Visit). I'll leave it my betters in the Philosophy & Science departments to state what brand of bias that is. (I'm taking your story absolutely face up - this is just what appears to be the chilling results of the national mood.) So if I make non-commercial copies of songs I get to have a nice visit from $10,000 of SWAT but to get patent reform we have to write - call - visit? Why not just post a killer meme song on YouTube? (Hang on tight, this is gonna scare a couple of you.) Has anyone asked Steve Ballmer if he has released the rights to "Developer"? MS wanted this reform too right? Get Steve Ballmer to sign on with his signature meme and it's a lock!!
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
But is it the right thing?
Slightly at odds to my remarks about Microsoft in a sibling post, let's try this Microsoft example from Wikipedia.
Any comments?
--- From Wikipedia
Impact of the changes
Opponents of H.R. 1249 assert that the impact of the changes to the current law will be to effectively neuter the U.S. patent system. Patents owned by startup companies, research institutions, and independent inventors ("startups") will be unenforceable against large corporations. Avistar Communications Corporation's encounter with Microsoft illustrates how this plays out. In 2007 Avistar was a startup developing desktop videoconferencing and online collaboration tools. Avistar had 29 U.S. patents, a number of pending U.S. patent applications, and numerous foreign patents and applications. Avistar approached Microsoft to negotiate a license to Avistar's patented technology. Microsoft wanted a license on terms Avistar would not agree to, and decided to use post-grant opposition in the PTO to litigate Avistar into submission. After six months of licensing negotiations, Microsoft, in February and March 2008, requested reexamination of each of Avistar's 29 U.S. patents.[66] Defending a single patent in a reexamination proceeding "routinely costs a patent owner hundreds of thousands of dollars in legal fees."[67] To pay the legal expenses associated with the reexaminations, Avistar, in April 2008, announced that it would cut its work force by about 25 percent.[68] This was not enough. With legal costs piling up, Avistar was forced to sell substantially all of its U.S. patents and patent applications, and related foreign patents and patent applications to Intellectual Ventures ("IV"). IV, originally called the Patent Defense Fund, was founded in 2000 by two-ex Microsoft employees. The idea was that IV would provide a way for Microsoft and other large technology companies to protect themselves against patented inventions. "Initially, each company ... was asked to pony up $50 million. The plan was that IV would then go out and buy patents that were knocking dangerously around the marketplace, and investors would get a license to the entire portfolioâ"effectively immunizing them from the danger of intellectual property litigation." [69]. IV has raised over $5 billion.[70] Avistar sold its patent portolio to IV in January 2010, taking a grant-back license so it could continue to sell its patented products.[71]
Avistarâ(TM)s encounter with Microsoft reduced the price of Avistar stock 61%,[72] and Avistar no longer owned the intellectual property it spent years developing. Microsoft imposed unbearable costs on Avistar using the reexamination procedure available under current law, i.e. without the benefit of the even costlier post-grant opposition procedures created by H.R. 1249.
http://en.wikipedia.org/wiki/America_Invents_Act
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
No matter what rep you work for, their office - through the auspices of a series of elected officials - is known to have completely and utterly broken their solemn oaths; known to have violated the constitution repeatedly and deeply; and you... you suggest we trust the current rep in that office, that we spend our time providing suggestions to them.
You're hilarious, you are.
But I'll tell you what. When the reps you work for rewrite the laws to respect the commerce clause for what it actually was meant to accomplish; when they reverse the ex post facto laws they've put into the legal system; when they stop trampling the bill of rights; maybe it'll be worth contacting them without bribe in hand.
Not that anyone sensible is holding their breath for any of that, mind you.
I've fallen off your lawn, and I can't get up.
My problem is that my US Representative is Joe Walsh. A bigger idiot, corporate lick-spittle and traitor to the American citizen never existed. Writing to him is a huge waste of time. (I know I've tried.) Calling him is worse. You're lucky if you ever get past voicemail. (I never have.) Joe doesn't want to hear from the "little people". The only way to get his attention is to have "Corp." after your name and a check in your hand.
Patent licenses are one of the main forms of passive income enjoyed by rich people along with copyrights and real state.
Software patents should not exist. These so called inventions should be protected by copyright instead but this is going to be very hard to change since the same rich people earning passive income from them is the people that pays lobbyists or happen to be the lawyers and judges that hear these cases.
Patent reform to the point of eliminating software patents can be done but it would require a massive effort similar to the Civil Rights movement.
HTML is obsolete. It's time for a new, simpler and richer markup language.
I'll write to my Rep. He's a Republican, so I'll put it in terms I think will resonate. Patents are government interference! Get the government out of my business!
But I want to go much further than a mere bill. I want to remove the "exclusive" part of both patents and copyrights. No more monopolies. To do that would, I believe, require a constitutional amendment. I'd like to change to a permissive system, in which anyone can use anyone else's work without explicit permission, payment, or anything else burdensome. As matters stand, the default is "no". If you can't contact the rights holder, and negotiate an acceptable agreement with them, then you have to do something else. They don't have to be reasonable. They don't have to deal. Or you do it anyway and risk a lawsuit. In practice, so many things are patented that you are stepping on many toes whenever you do anything at all. Totally impractical to determine whether you are violating thousands of patents, let alone track down hundreds of rights holders. Your only real choices are to risk the lawsuits, or do nothing.
Let's change that default to "yes". Make it so inventors want their inventions used. If someone else uses an idea you patented, you can apply for money from various funds set aside for this purpose. In short, the replacement system would be an updated, modernized form of patronage.
I've been hacking up a draft for the "Freedom of Knowledge" Amendment, as I've been calling it. Not at all satisfied with it, yet. I think such a proposal, if it went anywhere, would really light a fire under the owner class in our society.
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
As long as MS's (and other companies) idea of first to patent doesn't come to pass. What that means is that you can invent something, but don't patent it, and I come along 2 years later and create the same thing and patent it, then I get the patent and you get screwed. Only previously patented inventions would fall under prior art.
Also there should be a staggering of patent lengths based on the industry. As an example, Software patents should only get a couple of years, mechanical patents the current, and pharma patents longer because it can take up to 15 years or longer for a pharma product to even come to market so the effective patent protection is far shorter.
I cannot believe the number of truly uninformed comments in this post.
There are those who believe all software patents should be invalidated because they are merely ideas. One of the commentators at Ipwatchdog gives a great refutation of this assertion: "...you clearly do not understand computers and software if you believe they are abstract ideas. The arguments against software patents have a fundamental flaw. As any electrical engineer knows and software developer should know, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. Software is just a method of converting a general purpose electronic circuit (computer) into a application specific electronic circuit. As a result, to be intellectually consistent those people against software patents also have to be against patents for electronic circuits."
If you have a great idea for an information technology system and this system is novel and useful you should be able to patent it.
The problem of junk patents can be solved by better processes at the USPTO. Getting rid of all software patents because there are junk patents is literally, "throwing the baby out with the bathwater."
You can be certain that any type of "reform" that comes out of the current corrupt system in Washington will favor large corporations, because they are the ones who can most effectively bribe our politicians.
This is neither some new sign of reform nor anything particularly unusual. Different government agencies/workshops request public input or hold hearings regarding patents and other policy all the time.
Part of the problem with "Joe Q Public" participating in things like this is highlighted by this Slashdot article. This is not a process of writing one letter to your congressman. This is a process of keeping up on multiple agencies and participating in a sustained way over decades.
Eg, slashdot missed this just a few days ago, which is an actual attempt at enforcement reform by the FTC and public comments submitted by Xiph and Mozilla (who have both been at this for a decade now): http://www.xiph.org/press/2011/ftc
So fewer "OMG!" spot articles that see .01% percent of the problem, and maybe more articles looking at the comprehensive picture?
The PURPOSE of patents as spelled out in the Constitution is ONLY to promote the Useful Arts and Sciences. IT IS NOT to reward the inventor or any other such thing.
The Framers explicitly permitted patents in order to serve a larger societal good- Progress, NOT to reward individual effort using the device of government issued monopoly. If Progress happens nearly as quickly or more quickly absent patents, then no patent should be issued.
Before some point in the 90s, software patents were rare. Yet all of the important inventions in software including:
operating systems,
word processors,
spreadsheets,
markup languages including HTML,
the network protocols that are the internet,
and all the hundreds of millions of "patentable" ideas contained in those inventions were created.
This historical fact forms an existence proof- the strongest form of proof possible- that profound and societal-changing software innovation takes place without the benefit of patents. We don't have to speculate on this matter- we know it to be true with absolute certainty.
Either the US and like minded jurisdictions will stop permitting software patents or their markets will be abandoned by creative developers who can make a better living elsewhere and use their energies to create rather than litigate.
It's amusing to hear the opponents of big government defend software patents as though innovation killing government issued monopolies were some form of birthright.
It's irrelevant that so many companies market "valuations" - like IBM - are dependent on "intellectual property" in the form of software patents. The fact that IBM et. al. elected of their own free will to place a huge bet on the software patents has exactly nothing to do with whether they promote the useful arts and sciences. It's not the government's job to bail out corporations - or continue to support them- if they make bad decisions. If IBM bet big on software patents and loses, then that's no one's fault but IBM's and is of no concern to anyone but IBM. Sustaining the current system because of the negative effects change would have on companies who made bad choices is just another form of Too Big To Fail and nothing else.
A society that adjudicates basic issues to favor and support existing corporations and thus disadvantages its future prosperity is called a plutocracy, and we all know what those look like and how long they survive in the face of real competition.
Either the government will disallow software patents, as New Zealand has, as the EU does, as India does or it can watch as the software developer migration becomes a tidal wave.
Yes, that is a threat.
Has anybody even read the act yet? It says nothing about software patents and just makes it easier for companies like Microsoft to outcompete small inventors by changing the US patent system to first -to-file. Not sure who planted the "story" here, but the legistlation has already been written and passed by the Senate and is being considered by the House. It's pro-big business, and does nothing to curb software patent abuses.
I often bring up the progress bar patent [blogspot.com] (which expired just a few months ago.) Start with "You know when your computer boots up, or you're loading a web page on your browser? Notice that progress bar at the bottom of the screen? That's patented, and technically someone would have had to pay a license for that."
That is not the impression I get from reading the patent, which is much more specific (and the patent claims the methods to accomplish this task. In fact, the patent doesn't even mention a bar, it mentions a rectangle of twenty characters, and the characters disappear in an unspecified order (but not necessarily linearly):
The icon does not require a graphics display to be used and therefore can be used on both graphics and non-graphics displays. The icon of the prepared embodiment has five rows consisting of four percent (%) symbols surrounded by a border. At the beginning of a task, a task monitor quantifies the task into substantially equivalent task work units. All twenty "%" symbols are present and displayed to the user. When the task monitor determines that one task work unit has completed, one "%" symbol is replaced in the icon by a replacement character, such as a blank or null character. The replacement of one "%" symbol each time a task work unit completes continues until all of the "%" symbols are replaced, indicating 100% completion of the task. The order in which symbols inside the icon are replaced is determined by a pattern array and can be modified if desired. The symbols used inside the icon and for the border are selected to be available in virtually all languages, and can also be modified to meet the needs of a particular user.
Granted, it still seems pretty trivial, though it was filed in 1989. The main problem is that it makes no sense for software patents to last 20 years from filing... that's an eternity and then some in the software world.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
I think that there had been some abuses on the software industry since govement lacked to regulate this at its time. It is time to pass a law that: 1) All software source code of commercial product should be available for public observation under the license the author choose. 2) All software that reached EOF must be open source under a license that allow legally derivate work.
That's a great example, and it shows why we (as a slashdot community) need to contact our Senators and Representatives now about software patent reform! Especially the Representatives, since that's where the America Invents Act currently is up for vote.
My advice: if they aren't willing to take action now (because AIA is about to go for vote, so they don't want to change it) ask them to support a procedural change with the USPTO. See my other post on that. If the AIA passes, the USPTO is supposed to propose new rules and guidelines for review, etc - and review is our next opportunity to fix software patents. Community Review (where the USPTO can proactively poll other industry experts if a software patent application seems "new" or if it's "obvious") is one idea.
The key point, though, is that your Representative or Senator knows his/her constituents are paying attention to software patents. When they know the voters at home care about it, the politicians start to care about it.
But in general, if you live in Minnesota, New York, Rhode Island, Connecticut, Oklahoma, Utah, or South Carolina, you need to talk to your Senator's office about technology issues. Why? Because your Senator is on the Senate Subcommittee on Privacy, Technology, and the Law. Technology is a subject your Senator is very sensitive to right now.
1) Patent filings are to remain secret for a period of 180 days. If during that 180 day time period, multiple patents arrive to cover exceedingly similar "inventions" from multiple sources, all those patents are invalid based on invention being obvious by those skilled in the practicing arts.
2) No patentable invention shall be granted to something that is a mathematical process or algorithm. And such, because computers are, at their core, simple mathematical computational and transformation processors, no computer code can be patentable, as the end result is simply the manipulation of 1's and 0's in a set mathematical algorithm.
3) No natural occurring entity can be patented. This includes the patenting of plant, animal, fungal, or any other classification's physiology, bio-chemical processes, reproductive, or other naturally occurring systems, which includes patents on DNA sequences, and genes of said organisms.
4) All patents must include a detailed, working, and valid description of how to design the patented invention.
Hey, if you can get your Senator or Representative to pay attention to you by posting a video on YouTube, then go with it.
But I'm just telling you what we know politicians will listen to. And right now, the best way to get a politician's attention is to contact them through traditional means. And yes, writing letters or calling their office (or if you happen to live nearby to an office, visiting them) is something they listen to.
Thanks for the post! If I had mod points, I'd give them to you.
Mod Parent Up!
The "inviting public comments" link appears to be incorrect. The Federal Register page to which it links is entitled "Streamlined Patent Reexamination Proceedings; Notice of Public Meeting" and seems to have no mention of software patents. Please provide the correct link.
Jim, your software patents primer page asserts: "A patent protects an invention."
Is that really the case, in your opinion? (Honest question, not sarcasm, since I was personally defrauded of multiple patents by a former employer.)
It seems to me that protecting inventions is a root of the problem: it shouldn't be an invention that is protected, but a right, of an inventor. Inventions don't have rights, inventors do.
The implication of that, in my view, is that intellectual property rights (in the US) should not be transferable away from individual inventors, and that the protections should not outlive the inventors themselves, since rights are no longer useful to an inventor after death, though an invention likely survives its inventor.
Case in point: Java. James Gosling was ostensibly its inventor. He doesn't own the Java IP - Oracle now does, via his former employer, Sun; Oracle bought Sun to obtain that IP. They've sued Google over that IP. Gosling is now a Google employee, so in effect, he's being sued over something he invented, when his status as inventor would be stipulated by all involved - it's just not a relevant point of law.
I think some other model is needed for funded inventions, maybe something similar to what Sen. Sanders recently proposed, e.g. for inventors who work for companies. I.e., if it is truly an organization that invents and not specific individuals, then some other form of protection should be applicable. And it should have a legal fragility similar to that of trade secrets, since organizations themselves are fragile. Intellectual property should not outlive its inventors, whether those are individuals or organizations, since what is to be protected is inventors' rights, not the invention itself.
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