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The Software Patent Debate Is Incorrectly Framed
An anonymous reader writes "It doesn't matter whether a true invention is implemented in hardware or software, it should still be patentable, argues Marty Goetz — the man who was granted the first software patent in 1965."
The crux of the argument, according to the author: "Has there ever been a controversy about whether an invention using hardware circuits is patentable? I doubt it, even though hardware circuits are much like software in that they can be reduced to a mathematical algorithm."
I'm not sure if software patents should be completely abolished, just reduced. Maybe five years? I mean, how long in the software industry until something is considered old news or common knowledge? For them to last 20 years just seems to be nothing but inhibiting of innovation to me -- and I'm a software developer! I'm one of the guys that should be benefiting from a longer term. But so far, it's only been a major pain in the ass. I'm sure Goetz could argue I'm just not "inventive" enough to hold software patents. I'd wager I'm just not up to the task of working with an army of lawyers.
I actually take serious issue with Goetz's explanation on the second page of the article about software:
Note that these terms are all consistent with a manufactured product: research, competitive analysis, functionality, specifications, operational environment, operating characteristics, interfaces, modules, engineering, implemented, debugged, tested, quality assurance, alpha and beta testing, documentation, installation, training, OEM, component, system, repackaged, maintenance, warrants, workmanship, guarantees, errors, defects, improved, enhanced, upgraded, and models.
Dude, you can make software development as complicated as goddamn rocket science. But at the end of the day some kid in a basement can also write software sans all that shit. I know where we work, we use Agile Methodologies, high communication, we work in very small teams and we depend on our developers not to be complete liabilities. Sure your control gates and extensive product assurance works too with just about any level of competence in your developers but I feel that's why software is so unreasonably expensive these days.
There are plenty of resources online that get you from nothing to your first "Hello, World!" program in a matter of minutes. The same is not true of hardware circuits -- especially if you want to manufacture them at all in a commercially viable way.
This analogy is rather flawed.
My work here is dung.
That's why all patents are just plain bullshit and should be nullified...
Video of some good progressive thrash music
Hardware is just physics and physics is just applied mathematics, so everything can be reduced to a mathematical problem ... if you're willing to be silly and unhelpful enough.
Has there ever been a controversy about whether an invention using hardware circuits is patentable? I doubt it, even though hardware circuits are much like software in that they can be reduced to a mathematical algorithm.
So because the two things are similar in one respect they should be treated as if they are the same?
My sister and I bear the same family name, so we are the same?
Flawed logic at it's best.
Is there any debate that a printer can be patented? No. The output of the printer however is another story altogether.
A fool throws a stone into a well and a thousand sages can not remove it.
Define "New Idea"
Science advances one funeral at a time- Max Planck
At one time, innovation and invention were hard to come by, and needed to be encouraged greatly. They weren't viewed as profitable and useful enough otherwise.
Today, innovation and invention is far cheaper, faster, and more profitable. The low end of the range can have massive changes in weeks. The high end still take years, money, and knowledge.
It's still worth protecting the high end. But 'protecting' the low end just stifles innovation. The system was supposed to correct for this by refusing 'obvious' patents. Now, either we need to redefine 'obvious', or there needs to be more unpatentable things. If you can bring something to market in a single month, there's no way that should be patentable. (1-Click, I'm looking at you!)
But if it takes a year, then it needs protection for the creator to recoup their money.
I don't know if it would work, but it would be an interesting twist to see patents expire when their cost has been recouped. So if you try to license patents out instead of creating the item, the best you could do would be to break even. (This would not include operating costs in the mean time, only profit, so you could probably make a decent living by stretching it out, but you couldn't possibly grow your company with it.)
"If you make people think they're thinking, they'll love you; But if you really make them think, they'll hate you." - DM
Since the examiners are skilled in the art, how can they possibly apply that test? The purpose is to reward actual innovation (dare I say "strokes of genius"), not "what we were working on this week in the lab."
Is it just my observation, or are there way too many stupid people in the world?
Article 29 Conditions on Patent Applicants 1. Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application.
Emphasis mine.
While there are a great deal of faulty patents granted, one of the larger problems Software Patents in particular face is the 20 year duration. For an industry which re-invents its self every two or three years, twenty years might have well be two lifetimes worth of work. If the duration was shorter many of the obvious junk patents would have already expired and we would be in a far healthier place.
To solve Software Patents you can't get rid of them, we're already in too deep. But you can shorten the duration substantially and make a series of special courts who's job it is to deal with technical patents (and who employ technical experts). The courts are simply too ignorant to be able to understand what it is they're meant to be deciding. They have no expertise in the software field, or in any other special area (drugs, business processes, etc) but yet we expect these people to use their "common sense" to decide things like if slide to unlock or one-click checkout should be a valid patent.
I totally agree with what he says. However, he misses the point that's called reality.
Problems that could easily be solved in hardware, would require a description of this hardware. A transistor here, a flywheel there and a plate of metal here in order to achieve X. It's that description that is then patented, not its functional result. Alternative implementations would then not be covered by the patent so anybody that finds a way to achieve X with a piece of plastic instead of metal should not be bothered by it.
That's not what we see in software patent land today; instead of the technical design, the functional result is patented. There are a million ways to implement slide-to-unlock and somehow Apple has a patent on all of them. That's odd, since most of these million ways have nothing to do with the original research Apple has done in order to obtain the patent.
If the same standards for granting a hardware patent would be applied to software patents, I could probably live with them (since in that case there would hardly be any software patents). Now I cannot, especially not when selling software in the USA.
Also, mathematical formulas cannot be patented. Therefore the comparison with mathematics is moot. What can be patented, is the practical use of that specific formula. Also note, the patent Marty Goetz was granted was not a software patent in the sense that we think of it today; his patent was valid ONLY when used on a machine using two tape reels. A pure software implementation would NOT have been patentable. Therefore using this patent as an example of a software patent is misleading; it is not a software patent, it is a regular patent that has part of the solution implemented in software.
0x or or snor perron?!
The problem with software patents is not that they are software, it's that the vast majority of them are obvious and they tend to be overly broad. Anyone encountering vaguely the same problem would produce the same solution, or one sufficiently similar that it would be covered by the patent.
The other problem is that patents really fail at their primary purpose: encouraging disclosure. No one looks for algorithms by doing a patent search. People look for published papers, existing libraries, or invent something themselves. Any one of these can end up violating a patent, but without gaining any of the advantages of the patent system.
People campaigning against software patents often get bogged down by assuming that this is something that is limited to software patents. It isn't. Talk to people in almost any industry, and you'll hear the same thing. They either have big cross-licensing agreements that let them ignore all patents and just keep out new people, or they find themselves constantly having to pay royalties for things that they invented independently.
I would have no problem with software patents if they were limited to the scope that the patent office claims: novel, non-obvious, useful. If this happened, I doubt even 1% of current patents would stand up.
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The big difference is that with a hardware patent, you can still do the same thing as the patented implementation but in a different (ind ideally, improved) manner without infringing on the patent. With software, the idea itself is patented, meaning you can't even come up with a vastly superior implementation. In my view, this (along with the fact you don't even seem to have an implementation to get the patent) is the most important part of why software patents are a roadblock to innovation.
The point is, not that software can be reduced to maths, but that no reduction is necessary. A software program is maths. Already. A programming language is simply a language for writing down maths. It just happens to be one which computers can understand too.
These are simple statements of fact. Like global warming, they are facts that corporations just want to ignore.
Prediction for end of Universe #42: Fencepost error in Quantum_bogosort.cpp
... apparently circuits should not be patentable. Basically anything that's obvious or just the next logical step (even if clever) should not be patentable. So if he's right then we should see circuit design as just another program and get rid of those patents too.
Imagine if you weren't allowed to use roads because a bus company complained about your driving 3 times. --skunkpussy
Should you be able to patent the combining of two old ideas? Many software patents are not new but are simply an old idea implemented in a new way but using existing techniques which are obvious to anyone skilled in that area. Typically it is just an extension into a different field of use.
Eg. A database to keep track of bird sightings. There is prior art of how to record such things in a log book (spreadsheet/table format) and anyone skilled in the creation of digital databases can duplicate this format and write CRUD operations.
This would probably receive a patent in the current atmosphere. I've seen many patents just like it but for other topics.
IMHO the above example and all "software" or "business method" patents like it should be nullified. They are not new or innovative in any way. They are just applications of existing technology.
A fool throws a stone into a well and a thousand sages can not remove it.
Let's grant, for the sake of argument, that software patents should be no different than regular patents.
I want proof that patents at all are a net benefit to society. Could they possibly be worth the damage to our freedoms, and our pace of innovation?
Software should be patentable *as long as the source code is released*, which is not the way it's usually done.
But that's the way it's done by the MPEG effort of ISO and IEC. For example, MP3 is patented, but demonstration source code for an encoder was made available. In fact, BladeEnc and LAME were bootstrapped from the ISO demo code, replacing one component at a time.
Most software patents handed out theese days, are about the first solutions that entered the head of the first person trying to do something. Unless the problem can be given to (in this case) a reasonably competent developer without him coming up with the same solution - the inventor is not giving anything of value to the public in return for his monopoly.
A few software inventions like: arithmetic coding and the RSA cryptosystem pass this test - whereas things like the FAT filesystem patents, and most other software patents, like the currently popular ending in: "...on a mobile device" are things that would have been made and disclosed to the public if they matter at all.
Run with the lemmings, and you'll get your feet wet.
"The software products industry is competitive and needs patent protection as much as any other tech industry. Those software doomsayers who say software is just ideas, mental processes or mathematics would change their mind if they examined the different phases of the life cycle of a software product."
Last time I checked the people that were opposed to Software Patents where almost exclusively Software Engineers, since almost no one else is aware the issue even exists.
Is he trying to say the Software Engineers do not understand their own product?
Masks are copyrighted. The designs they implement can generally be patented, but those designs are described in patents as certain interconnections of devices typically. Violations of circuit patent is generally easily verified. You just send the competitor's device to have the mask layers extracted from an actual die and run circuit extraction on the result.
VHDL and Verilog are normally copyrighted. When they implement patented algorithms, it's effectively a software patent, which should also be banned as patenting mathematical algorithms. However, most patents are things like "Connecting a first fifo to a blah blah blah", where rather than patenting an algorithm, they patent a certain connection of circuit blocks. I would argue that is not a mathematical algorithm.
The original authors of our patent system were wise to ban mathematical algorithm patents. Such patents present a real threat to the free flow of ideas in universities and in open source software. They hold back progress. While it is easy to find patent violations in open source software, it's nearly impossible in proprietary binary-only software. As a result, we get vague threats like "Linux violates 100 of our patents. Pay us royalties *or else*." When you ask which patents you violate, they say it's a secret. The system is so screwed up, it's unbelievable it has supporters at all. I personally have several software patents. For the first few years, I refused to file them, and only filed hardware patents, but then a competitor patented an algorithm we'd been using for years, so I gave up and patented everything that was allowed by law. The result was a huge waste of time and money at both our companies, with zero benefit. Only the lawyers win.
Celebrate failure, and then learn from it - Nolan Bushnell
The problem is that you're taking a lot of obvious and known methods, apply them slightly different then patent it. You are essentially creating an anti-competition moat around your product. To take one example, Apple's slide to unlock patent. Is is really that fundamentally different than the slide-to-open camera I've had for many years? The purpose is the same, rather than some button that can be accidentally pushed in the slide doesn't happen very easily. For example, the latest hype now is tablets. I'm pretty sure you can find plenty patents filed lately taking what is obvious on a cell phone or computer, but reapplied to tablets and patented again.
Another example was the Creative patents Apple had to license for the iPod, I read a bit of them. It was essentially taking all the functionality in WinAmp or other PC players and patenting them on a portable music player.
Of course I can see that sometimes taking an existing technique from a different industry and applying it can be a rather revolutionary and novel idea. But most of the time it's not and yet they grant patents for it all the time.
Live today, because you never know what tomorrow brings
Medical research, like research into climate change and many fundamental technologies, is something that should always be Government funded to protect it from commercial pressures.
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
This ignores the bigger issue, that software patents rarely include sufficient detail to allow others to duplicate the work. The whole point of patents is to give the tech to others.
Patents restrict specific implementations of a specific functions. That is exactly the problem with software patents -- they are used to restrict all implementations.
And they don't provide the public benefit. Patents are supposed to show you exactly how to reproduce the subject of the patent. That way, when the patent expires, anyone can use the knoweldge.
I don't see source code in many software patents.
This is a critical point IMO.
The big problem with software patents, IMO, isn't that they are patents on math, but that they are so grossly vague that they have absolutely no purpose ever being patented.
If a person of moderate experience in the field can't read the patent and make an exact duplicate of it, it shouldn't be a patent.
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
Unless you're at least a little bit of a motorhead, you might argue that all carbs look alike.
Unless you're not a human, you might argue that all binary blobs look alike. Software is judged on its output, not the process by which it achieves that output.
But going back to that carburetor. If you had a carb patent and didn't even bother to take apart my carb to see if I actually infringed before suing me, how much money would I have to spend to defend myself if my carb was different from yours. Show your work, factoring in issues like the "Doctrine of Equivalents" and "After-invented technology" as you grasp at ever thinner straws to keep your case together and try to bankrupt me or force me to settle.
No one was awarded a patent for "mixing fuel vapor and air".
No, but they were awarded a patent for
and the patent holder is using it to sue people for having in-app purchase buttons.
If I have been able to see further than others, it is because I bought a pair of binoculars.