A Defense of Process Patents

An anonymous reader writes "In light of the ruling against the University of California patent trolls seeking to claim ownership of the 'Interactive Web,' founding attorney of Beacon Hill Law Joe Stanganelli, has written an article defending process patents. In it, he refers to technology pundits as 'bizarro' and argues that it's a misconception that patents stifle innovation. As he writes, 'What I do not understand is — had the jury determined Eolas's patents valid — why it would be A-OK for dozens of already megarich corporations to get even richer adopting technology they did not invent or have legal permission to use, but somehow immoral for the actual creators of the technology to likewise profit[?]"" I am not a patent lawyer, but I doubt I'm the only one who thinks it's possible to support a patent on an industrial potash processing technique, but not software patents — or at least to distinguish them from each other.

Comments

Oh, the jury strawman

[tibit]

What I do not understand is — had the jury determined Eolas's patents valid [...]

Let's be blunt: that makes the jury look stupid, not the patent somehow ethically OK. The patent was nothing new, there was plenty of prior art. They got lucky with a silly examiner, that's all.

Re:Oh, the jury strawman

[tqk]

The patent was nothing new, there was plenty of prior art. They got lucky with a silly examiner, that's all.

There's that, and then there's the bit that the whole patent system is a gov't granted monopoly hack intended to skew the workings of the free market. In programmer terms, it's as bad as a goto. There are lots of ways to do what that intends to do without doing it in such an ugly way.

Plenty of vibrant industries don't rely on the patent system at all (eg. the fashion industry). The patent system enriches lawyers, full stop. It doesn't "promote the sciences and useful arts" at all, and seeing how capricious and how easily gamed it is as presently implemented, it should be abandoned.

Eg., Apple's look and feel patent !@#$ just disgusts me. They've done great stuff in the past. They shouldn't feel the need for crap like this now.

Re:Oh, the jury strawman

[hawkinspeter]

Patents don't "promote the sciences and useful arts" because Copyright does.

That said, I agree with your sentiment. Patents are supposed to provide a benefit by allowing companies to use inventions which would otherwise be secret. Nowadays, patents are granted for "obvious" things and provide a minefield whereby anyone trying to invent something inevitably infringes someone's patent and becomes liable even though they may not have seen the original patent.

Re:Oh, the jury strawman

[tibit]

Huh? Both the U.S. patent and the copyright systems are in existence due to the "promotion" clause in the U.S. Constitution. They have the same reason for existence (or lack thereof), they just cover different aspects of it.

Re:Oh, the jury strawman

[hawkinspeter]

Oops - my bad. I'd only heard that in relation to copyright.

Re:Oh, the jury strawman

[Ghostworks]

There's that, and then there's the bit that the whole patent system is a gov't granted monopoly hack intended to skew the workings of the free market. In programmer terms, it's as bad as a goto. There are lots of ways to do what that intends to do without doing it in such an ugly way.

The issue with the patent system is not with the system itself. The issue is with timing, and uniformity.

Patents originally granted relatively short protection periods to allow the creators to recoup certain R&D costs, and to give nacient or niche industries a chance to establish themselves. But the protection times can't be allowed to become large relative to R&D costs. When chemistry and pharmaceuticals were most difficult to research, they got the longest-running protection. I believe they still do. Logically, now that a new product area with drastically lower R&D costs has come around (software and networking) patent protection should be possible, but over a shorter time.

This didn't happen for two reasons. First, a member of the judiciary extended an existing law, essentially doing an end-run around the legislature. The issue of software patent existence and longevity should have been debated in Congress before protection was given. Now that protection has been given by the judiciary, it's hard to strip it away. Second, various international agreement discourage countries from creating new categories of IP. They worry that a country will reap the benefit of NAFTA, ACTA, etc. by agreeing to the treaty, then stripping away inconvenient protections by re-categorizing products through local legislation. So by trying to make the treaty hard to weasel out of, we also tie our own hands.

If we are willing to move back to a system where it's A-OK for the legislature to create new categories of patents (explicitly create software or business method patents, though I am skeptical about the validity of the sceond under any terms) and allow those new categories to have protections appropriate to the pain taken in advancing the art (say, 2-4 years of protection for new software methods), then we would be in a much better position..

Further, you (and many) seem to speak of the free market as a goal and not a means. The Free Market is not a religion. It's a good idea. Under certain conditions, it's a perfect solution. But int he real, limited world, it's an option. It's a widely-used option that works in may areas of society, but not all. And in this context, a situation involving no protection and the alternative of unlimited term, unforgiving, rigid patents could BOTH be called a "free market" so long as the end products are up for sale somewhere. While this is a monumental subject, I will limit myself to saying that both a protection-free solution and a completely rights-driven solution will lead to problems and inefficiencies. Free software works for the majority of end users because it shortens development time for engineers who develop the products the end users REALLY want, not the products bored volunteers give them for free. Patents often work for the end user because it lets the developers actually found companies that make the products end users REALLY want, not just what's already on the market doing half the job. The fact that most major open-source projects today are driven by paid employees of major companies (who in turn also rely on a large number of patents) underscores this. Both methods make development more profitable. Either alone may work, but not as well. And, as with most things, one-sided approach to a complicated issue guarantees failure.

Plenty of vibrant industries don't rely on the patent system at all (eg. the fashion industry). The patent system enriches lawyers, full stop. It doesn't "promote the sciences and useful arts" at all, and seeing how capricious and how easily gamed it is as presently implemented, it should be abandoned.

Your comment about the fashion industry is misguided. The indus

Re:Oh, the jury strawman

[Jane Q. Public]

"There's that, and then there's the bit that the whole patent system is a gov't granted monopoly hack intended to skew the workings of the free market. "

Absolute nonsense. It is intended to ensure that there even IS a market.

Let's be clear on this: historically, countries that have not allowed inventors to profit from their own inventions (yes, I mean exclusively, but for a limited time... that's a "patent"), have not innovated. They just haven't. They have, almost without exception, fallen behind the rest of the world in that area, and stayed there as long as such policies were in place.

Re:Oh, the jury strawman

[Jane Q. Public]

"... a system where it's A-OK for the legislature to create new categories of patents (explicitly create software or business method patents, though I am skeptical about the validity of the sceond under any terms)..." [sic]

The second? It is software patents that are the problem, not process patents in general. Where (to use the example already given) someone has a patented process to produce a certain chemical, let's say, it doesn't tend to cause problems. Software patents have caused problems from Day 1, and it was recognized that they would do if allowed, as far back as 100 years ago.

Re:Oh, the jury strawman

[tqk]

The issue with the patent system is not with the system itself. The issue is with timing, and uniformity.

I appreciate the effort you took to explain your position and point of view, however it comes across as equivocating. As in, we've already determined someone's a whore, and now we're just haggling over the price (no offence to whores intended, btw).

Further, you (and many) seem to speak of the free market as a goal and not a means. The Free Market is not a religion. It's a good idea. Under certain conditions, it's a perfect solution. But in the real, limited world, it's an option. It's a widely-used option that works in many areas of society, but not all.

There you go again. Either the market's free, or it's not free. Yes, it's binary. Either you believe in the invisible hand, and that supply and demand *should* determine worth, and that buyers and sellers are equals, or you don't. Either you believe in truth in marketing, or you want to fiddle with the market's guts until it works the way you want it to. Nuh, uh! I'll stick with my original point:

There's that, and then there's the bit that the whole patent system is a gov't granted monopoly hack intended to skew the workings of the free market. In programmer terms, it's as bad as a goto. There are lots of ways to do what that intends to do without doing it in such an ugly way.

Re:Oh, the jury strawman

[a_n_d_e_r_s]

They got lucky with a silly examiner, that's all.

No, actually whats happend is that the time an examiner has to check a patent has gone down. So its not a silly examiner but a system error that make bad patents get approved all the time. The time they have to examine a patentet is not much more then whats needed to read it and halvway understand it. They leave it to the courts to decide which patent is valid or not. The courts thinks the patent office actually throw out bad patents...

But they too seldom does. The goal of the patent office is to approve patents and not to disprove them.

Re:Oh, the jury strawman

[a_n_d_e_r_s]

Thats not true. Actually the opposite are more valid. The reason many rich countries of today has strong IP laws is not because they had them when they become rich - but because they think they can use them to stay rich. In reality the economic power of western europe and USA has been weakend the latest decades and thats because of strong IP laws and enforcement. Instead other countries like Chine and the rest of asia has been growing fast and steadily with much more weaker IP laws.

The reason Hollywood today is the movie capital of the world is because the moviemakers fled from the patents over movie making that existed in New York. Those movie pirates has grown into the major movie studios of today because of the weak IP laws in california 100 years ago.

So weak IP laws/enforcement means more opportunities and higher growth.

Re:Oh, the jury strawman

[tibit]

What the examiner did could be silly yet he didn't have to be stupid. Often we do silly things in spite of knowing better -- we're not stupid, not necessarily. So there. Irrational != stupid. People do irrational things, wrong things, even, whether they are stupid or not.

Re:Oh, the jury strawman

[Jane Q. Public]

"Thats not true."

Really? It's not? How about some examples?

Soviet Russia

Communist China

(In fact just about every Communist country, where patents and copyrights were illegal.)

It's a pretty big list. And when most of them were in full swing, they hardly innovated at all. What they did, was like what China does now: steal ideas from those who really did innovate.

Instead other countries like Chine and the rest of asia has been growing fast and steadily with much more weaker IP laws.

China has been growing because the government supports the stealing of ideas from other people, and manufacturing those products with cheap labor. The whole reason they DIDN'T prosper until recently was because they did not let anybody own "intellectual property". Technically, they still don't, but they have been lightening up in that precisely because they have discovered that ALLOWING people to own and profit from "intellectual property" is good for business.

If you look at the goods manufactured in China even today, you will find that the vast majority of them were DESIGNED elsewhere. Mainly the United States and Europe.

That has been changing in recent decades for the Eastern countries, of course, as more of them have gone at least superficially "capitalist" and now allow private business and ownership.

History is full of it, man. At one time you could point to just about any Eastern Bloc country and see an economy that was going bust, and very little innovation of any kind, and not just in technology, but INCLUDING in writing and music.

"The reason Hollywood today is the movie capital of the world is because the moviemakers fled from the patents over movie making that existed in New York. "

That's a rather extraordinary claim, since patents and copyrights in this country have always been nationwide. A patent or copyright owned in New York is just as valid in Hollywood, and it has always been that way.

Your logic is great, except that things have never actually worked that way in the real world. Pick up a history book and learn.

Re:Oh, the jury strawman

[Ghostworks]

Going through old comments. This will probably never be read, but what the hell:

Business method patents are not identical process patents. All sorts of processes are patentable, such as teh processes for distilling chemical components, manufacturing steel, etc. Business method patents are a recent invention arising from a Federal Circuit case, where the judge ruled that pretty much anything can be patented. Amazon attempted to patent the idea of an online "shopping cart": not a specific implementation in code, or even an abstract management system, just the entire notion of "a list metaphorically referred to as a 'shopping cart' of items a person has selected as those he might like to purchase is the near future." These have been written to cover whole business _models_. Including, ironically, a business method patent for patent trolling.

Re:Oh, the jury strawman

[Ghostworks]

Going through old comments. This will probably never be read, but what the hell:

re: equivocating
Forethought + disagreement = shilling. Got it. Not a very sound opinion, but certainly a convenient one.

Regarding the more substantial part of your post on the free market:

A market is free, not free, or somewhat free. Economists aren't thrilled by it, but the fact is that in practice most markets are not completely free. A bigger mistake, however, is to refer to the Market as a singular. There is no market. There are markets. And many of them are not even remotely free.

Most countries do not permit prostitution: sex is effectively free to distribute between people, so long as it's a gift. It's a service you just aren't permitted to sell.

Emissions trading was a hot point in debate in recent years because it introduced a market where none was before. The issue, of course, was that many people thought it was evidence of corrupt politicians letting big industry buy their way out of failure. In fact, a better way to think of it was the government attempting to put a price on something that (up to a limit) had been given away for free: clean air for industry to sully. This was to be an application of market pressures to regulate something that was previously very binary. And, for the harshest toxins, policy experts all made the same recommendation: don't allow such emissions allowances to be traded at all.

The printing of backed currency is reserved to various governments, which is pretty much necessary for those commodious little pieces of paper to have any value. Back when the value was backed by specie, such metals ALSO had to be traded through the government, or else through licensed buyers (a fact most people who fantasize about the gold standard seem to have forgotten).

Food and devices are regulated for safety and fitness for a particular purpose. Labeling, fitness, and safety laws exist to cover gaps in what a consumer can know. A consumer would never choose to buy poisonous food, or faulty cribs, but since they can't know 100% what they're buying, the market distortion is necessary. This returns to what I said about a perfect solution: as consumers approaching perfect information about the products, their processes and compositions, and the alternatives, free markets become optimal solutions for trade. But in the real world, we can never get perfect information, at least not without cost.

Pretty much every product on the market today is subject to some form of regulation, even raw labor. In the real world, a free market is a nice goal, insofar as improvements in consumer awareness allows us to consider a free market to be a better and better approximation of our ideal means of maximizing resource utilization. But the real world has limits, and every industry fudges on the "free market" notion a little, and some industries are complete non-starters because of it.

There you go again. Either the market's free, or it's not free. Yes, it's binary. Either you believe in the invisible hand, and that supply and demand *should* determine worth, and that buyers and sellers are equals, or you don't. Either you believe in truth in marketing, or you want to fiddle with the market's guts until it works the way you want it to.

It would be naive to hope that a few examples and a relatively short post on the internet will change your mind. I try, but I don't hold much hope. I will simply say that this last comment of yours illustrates _exactly_ what I said earlier about the Free Market as an object of religious devotion. The invisible hand does not guarantee you cheap goods, or even long-term stability. It guarantees you that and small discrepancies between wants and means eventually stabilize (though they are of course free to be replaced by _other_ disturbances to the equilibrium). It's an observation about the long run, and nothing more. Saying that that is all ye know of the markets, and all ye need to know is just ridiculous. It's li

Re:Oh, the jury strawman

[tqk]

Going through old comments. This will probably never be read, but what the hell:

"Surprise, surprise, surprise!" -- Gomer Pyle.

re: equivocating
Forethought + disagreement = shilling.

Oh, come on. "Equivocating"'s just a word. It describes a process. It needn't be taken as an insult (nor was that my intention). Being human means we're neither omnipotent nor omnicient. We can make mistakes without having evil intentions.

A market is free, not free, or somewhat free.

There you go again! Sheesh! "Somewhat free" == "somewhat not free", yes? So, not free?

I will readily admit I'm a pie in the sky dreamer, begging for a reality that almost certainly will never exist. However, I prefer to stand with Aristotle on this; "Things as they could, and should, be ..." I want to live in a world where my closest friend has a positronic brain, where I have a tricorder on my belt, and where Deanna Troi knows and understands what I'm thinking. If we don't hope and dream about impossibilities like that, how'll we ever get anywhere?

Most countries do not permit prostitution: sex is effectively free to distribute between people, so long as it's a gift. It's a service you just aren't permitted to sell.

Yeah. So? What's that have to do with us? Some humans are stupid Puritans but thankfully places like the Netherlands exist, where women (and men) if they so wish are free to sell sexual favours. Yay.

Back when the value was backed by specie, such metals ALSO had to be traded through the government, or else through licensed buyers (a fact most people who fantasize about the gold standard seem to have forgotten).

Yes, and why was that considered necessary? I'm thinking of a Greek running through the streets shouting, "Eureka!" here. Why was it ever considered necessary for the gov't to stick its nose into that private transaction? Because it could? So it would get a cut? How does that help anyone buying or selling gold? Gov't == Mafia protection racket?

A consumer would never choose to buy poisonous food, or faulty cribs, but since they can't know 100% what they're buying, the market distortion is necessary.

Sigh. We've got gov't up the wazoo, yet we're still discovering baby food containing melamine on the market. So, what were we paying the gov't for, actually?

I choose to respectfully disagree. The solution you offer (gov't regulation of a free market) is incapable of doing what you think it will (protecting buyers and sellers) and is little better than Mafia protection rackets. I suspect the Mafia would do it cheaper too.

Its obvious

[Anonymous Coward]

Patents are not supposed to be "obivious to someone skilled in the art".

Re:Its obvious

[Pinky's Brain]

Ah, but this means that obviousness is a judgement call by a skilled practitioner. Such a purely subjective metric is something lawyers will NEVER accept ... because it shows just how stupid patents really are when you need a jury of highly paid engineers to even be able to judge the validity of a patent. Every lawyer devised test for obviousness has boiled down to prior art, they will not stop trying to redefine the word obvious.

Re:Its obvious

[marcello_dl]

Such as a subjective metric can be made rigorous in the process of patent examination. How many silly patents would be tossed off once a couple guys had the chance of doing a clean room implementation given three days?
That would reduce the number of patents, making the application a lil costlier. Bad for the applicant, good for the society. We don't need 2 million patents, we need 200 of them that are useful and that can be reimplemented once the terms expire. That does not happen now, because patents are just a way to make virtual markets similar to real market for the powers of real markets to rule over them too.

Re:Its obvious

[Anonymous Coward]

I had a slightly drunk conversation with a drunk patent lawyer. One of his points was is that a patent is at it's root and answer to a question. And when you have the right questions, the answer is usually obvious. The problem with physical things is the finding the right questions to ask is hard. And uncertain, you might and likely will fail, repeatedly. The classic is the zipper. Simple idea, it only took two sets of inventors 40 years to figure it out. This is the essence of the matter, once you know the question the answer and implementation is easy. That's the root behind copyright, writing books takes time and entails risk.

Business methods and software don't quite fit into the patent and copyright molds. In the former there already is a huge incentive for companies to innovate (save money, crush competition), in the latter the questions are too easy to be protected by patents, and copyright is too long. Seriously Windows 3.1, who cares any more? But it will be under copyright for another 70 years.

Re:Its obvious

[jedidiah]

No. Once you have the specification, it is not easy. That's the point of your little anecdote. The zipper wasn't something that a college student could recreate with a perl script or a SQL query after thinking about it for 5 whole minutes.

The current patent process is not only full of things that are trivial but full of things that have already been done before.

Hey DCTech

[Anonymous Coward]

How are ya?

I know I'm not supposed to feed a troll, but what do you call MS's vague threats over Linux and Android?

Re:Hey DCTech

[jordanjay29]

So far every company has agreed? Oh, well Barnes & Noble must have changed their stance and paid up, then.

Re:Hey DCTech

[errandum]

Google does have an R&D department, but you should also notice that most of that "research" that Andoroid has to pay for is based on overly broad patents that were granted before there was any kind of scrutiny.

The big problem is, it seems to be more expensive to take microsoft to court and go through a long legal battle than simply pay for them, and that's why almost no one does.

I'm all for patent licencing when you've actually done something good, but describing a general idea like this http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=5,778,372.PN.&OS=PN/5,778,372&RS=PN/5,778,372 or this http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=6,339,780.PN.&OS=PN/6,339,780&RS=PN/6,339,780

Did you invent a new protocol that speeds up mobile computing? Did you develop a new communication device that revolutionizes anything? Then you should be compensated. But don't say that "a device with a screen and that has a browser and when the browser loads we show an icon moving" is innovation and should be worth 500 million dollars.

Re:Hey DCTech

[Barsteward]

bollox, every other one that has paid up has a Microsoft license to protect.

Re:Hey DCTech

[Surt]

Yes, Google spends money on R&D at about the same pct rate as MS.
http://setandbma.wordpress.com/2011/07/22/1240/

Re:Hey DCTech

[postbigbang]

.....then you should be compensated....

Snarl, snort. Feed the troll, especially the attorney in the post.

The problem is much deeper than what you can cover in a slashdot reply, but I'll try to capture the salient points:

1) the US Patent Office process is broken, and despite attempts to the assuage the problem, it grants patents to unbelieveably looneytunes stuff.

2) ideas shouldn't be patented, but they are granted patents, see #1

3) there is no model for compensation, rather, it's what the "inventor" desires, or wants to do battle with, so the output of the process is unpredictable in almost every way; it's a compensation plan for attorneys, not a business model

4) standards and protocols should never be patented, for they are agreements and processes, not inventions. You can't patent math because math is prior art. Algorithms, presentation values are all math. Attempts to patent genes should be met with life without parole: life is prior art.

The life of patents is dubious, and getting worse now that the madmen of media have allowed retroactive protection for "works". It is out of control, and the attorney in the post is indeed snacking from the insanity.

Re:Hey DCTech

[jd2112]

Yes, Google spends money on R&D at about the same pct rate as MS.
http://setandbma.wordpress.com/2011/07/22/1240/

Microsoft does a lot of good research but much like Xerox PARC before it most of the good ideas seen to have a hard time getting out of the lab. Google seems to be somewhat better in that regard. It might actually be kinda cool to have Apple raid Microsoft's R&D and "liberate" whatever cool technology they find like they did with Xerox do many years ago. (not that out would ever happen...)

Re:Hey DCTech

[Genda]

Brilliant, concise and to the point.

I would only add, that our law makers almost to a man, are lawyers or ex-lawyers and that it is good for lawyers to breed contention, disarray and conflict. A broken patent system, and system in fact which allows the most crass among us to patent, defend and firewall everything and anything including air, sunshine and the rain that falls on your face, makes their greedy little hearts happier than words can say.

Remember they aren't the least bit interested in society. They are interested in the depth and breadth of their bank accounts. To that end, most lawyers would be happy to build a legal framework for the production of Soylent Green, as long as they got some residual income from its production. Any thought that these people are your friends is at best a fantasy and much more likely a profound delusion.

Re:Hey DCTech

[jedidiah]

The ones where a number of patents are given but not actually identified. So what if Microsoft blows a lot of money on R&D? There's no gaurantee that they have actually produced something or that it's even present in Linux (or anywhere else for that matter).

Think something has been "stolen". Fine. Then say what's actually supposed to be stolen rather than trying to cast a shadow of fear over a rival.

Patents are supposed to encourage the disclosure of interesting trade secrets that would not otherwise be disclosed. They're not intended as a form of property, or a virtual land grab, or a means to bully rivals.

Yes. A 17 year monpoly is stifling. That fact should not even be under dispute. Anyone that tries simply being honest.

The question is whether or not it's worth the associated trouble.

Re:Hey DCTech

[jedidiah]

People tend to cave when it comes to bullies. The cost of trying to fight us usually considered too high. The struggle itself can be expensive regardless of whether you win or lose.

That is why any patent or copyright is "stifling". It gives obnoxious people the idea they have cause to bother others. It doesn't matter if it's Microsoft, Apple, or Harlan Ellison.

Re:Hey DCTech

[WolfWithoutAClause]

The problem is that you have to patent ideas, because if you patent a particular thing, that's the same as copyright, and modifying it in relatively trivial ways that work exactly the same, but look exactly different means that it's not infringing copyright.

So you end up having to protect the idea behind something, not the thing itself.

I agree with 3. There should be some kind of way to work out what compensation the patent deserves rather than just rely on the patentee saying no.

Re:Hey DCTech

[postbigbang]

No, you don't. Ideas and concepts are the cheapest currency in the known universe. Copyrights protect expressed text, and are vary two-dimensional. You have a medium, and an expression. Copy it verbatim, and you've ripped off the original author, subject to the law and the author's granted rights. Paraphrase, encapsulate, use it in any of the Fair Use methods, make a parody of it that encapsulates it, and that's fair game.

You cannot protect ideas. You can patent novel expressions of ideas, but only the specific expression in its novelty. Everyone has ideas. Protecting ideas is impossible. You cannot control creativity: it will do what it will do, as is the order of the universe. A newly described expression of an idea can have that expression patented. But you cannot stanch dreams, no concept can do that.

Some process patents can be valid

[mehrotra.akash]

Its difficult to draw a line
Say, someone discovers a way to convert scrap metal to gold
That person should be allowed to have a patent on it
But someone shouldnt be given a patent for facilitating video conferencing by piping images from a camera to the local PC and then over a network to the remote PC

Re:Some process patents can be valid

[ceoyoyo]

Difficult? Your example is clearly invalid due to rior art.

Re:Some process patents can be valid

[metacell]

Because combining those pre-existing technologies in that way is obvious, and if nobody had ever done it until x years ago, it's only because the need didn't arise until then.

Re:Some process patents can be valid

[dotbot]

Say, someone discovers a way to convert scrap metal to gold That person should be allowed to have a patent on it

Unless they're converting scrap gold into gold... which is about the level of sillyness we're seeing with software-related patents.

Patents should be a good thing. The problem seems to be technical ignorance and lack of independence in the awarding process.

Re:Some process patents can be valid

[tqk]

Say, someone discovers a way to convert scrap metal to gold.
That person should be allowed to have a patent on it.

i) Why?

ii) [Tangentially] If someone can convert scrap metal to gold, what the hell does he need a patent for? He's already in a better position than King Midas.

Re:Some process patents can be valid

[geoskd]

Its difficult to draw a line Say, someone discovers a way to convert scrap metal to gold That person should be allowed to have a patent on it

Why? If that person just simply used their machine to produce and sell the gold, they would have no need of ever letting on that they even have it.

Lets use something a little more practical. The person(s) who designed the class D amplifier for example. It was a borderline idea. It was novel enough that most engineers wouldn't have thought of it, but about a handful did. It only missed being patented because the first ones to market were from academia back before the patent furor started in the mid 20th century. They all made quite a tidy bit on money selling motor controllers based off their amplifiers. Even today, many people come up with good alternative amplifier designs. Many of those designs are patented, but the patents are not what keeps the companies like Bose in business. What keeps them selling product are the more evolutionary things, like adding multichannel support for surround sound, adding MP3 playback ability, adding multi-room support, and other features that come from a marketing perspective instead of an engineering one. If Bose stopped improving on sound quality today, and focused solely on producing better and better feature sets, they could probably survive a long long time without ever filing for another patent. The only trouble they might run into would be if some idiot granted an overly broad patent on something like using a network to do X...

Toilet paper manufacturers seem to have no trouble staying in business without needing to sue everyone in sight over patents. Makes you wonder...

-=Geoskd

Re:Some process patents can be valid

[theshowmecanuck]

Say, someone discovers a way to convert scrap metal to gold
That person should be allowed to have a patent on it
But someone shouldnt be given a patent for facilitating video conferencing by piping images from a camera to the local PC and then over a network to the remote PC

Yes, that is correct. What's the issue? A number of different programmers can come up with as many solutions to your coding example as there are programmers. A patent should not cover every method of catching a mouse. It should only cover a specific method; otherwise nobody would be able to get rich building a better mousetrap (to use the old saw). So if the person wanted to get very specific on how to send your video signal that would be what is needed for a fair patent. And I'm talking down to the code level because that is where the differences are. But that is not needed because copyright already covers that. And besides code is just a form of algorithm which I don't believe is patentable. Process patents are too vague/non-specific to be a fair patent.

Imagine if the criteria for process patents made it into main stream industry: they would prevent a person from building the proverbial better mousetrap: I patent a mechanical technique for capturing and/or killing a mouse when it triggers a sensor which can be mechanical or electronic... now no-one can patent a better one because that is so vague it covers it all. In your example, a programmer might be able to figure out a faster way to send the video by some sort of new compression technology algorithm he or she develops, but wouldn't be able to implement it because the over all process is patented already. I don't believe this was the intent of patents when they were first implemented, nor do I think it is a fair or just way to implement them now.

Maybe this is what has happened since we allowed business school types to somehow convince so many that the process is more important than the work or output. Or maybe it is because we allowed the 'Big Thinkers' into the picture; those that like to spout shit but never do anything, and still feel like they are owed a bundle (you know, like Wall Street bankers, lawyers, patent trolls, most executives, the modern bonus eating CEO...). But that is another story.

Re:Some process patents can be valid

[tragedy]

Let's forget for a moment that you said "discovers" instead of "invented". Someone who invents a method of turning scrap metal to gold isn't going to patent their invention. That would be crazy as the price of gold would instantly collapse down to rough parity with base metals unless the method is prohibitively expensive, in which case the price of gold will still drop to about a quarter of what it is today. If the method is economical at current gold prices, the person inventing such a method will almost certainly keep it a trade secret and make a fortune selling gold at a rate that doesn't collapse the market. From a profit motive perspective, that method would be infinitely preferable to patenting the process then trying to create a market for cheap gold. It might make good plumbing, and work well in all kinds of anti-corrosive coatings, etc. But it would take a long time, possibly long enough that the patent would expire, to build up such a market.

Re:Some process patents can be valid

[Theaetetus]

Because combining those pre-existing technologies in that way is obvious, and if nobody had ever done it until x years ago, it's only because the need didn't arise until then.

That seems to be backwards reasoning... If there's a need to do it now, then there was a need to do it then. It's not as if we didn't develop eyes until the past couple years and so therefore wouldn't have needed video conferencing.

Nobody's currently doing teleportation. By your logic, a need for it hasn't arisen.

Re:Some process patents can be valid

[Archangel Michael]

Or the technology was too expensive/slow to implement until recently. Sending images from a 1 MPix camera over dialup was near impossible, seeing as back then a 1 MPix camera was hugely expensive, and dial up too slow. It was obvious that video conferencing was coming from the sixties when we had cartoon depictions of it in the Jetsons.

IT was obvious it was coming, we just didn't have the tech for it until we had the tech for it, and then it took off as prices dropped and abilities increased.

Re:Some process patents can be valid

[metacell]

There was no need to combine those technologies in that manner until WANs were common and fast enough.to facilitate videoconferencing.

Patents should promote innovation

[evanbd]

Patents exist solely to promote innovation. Or, more specifically, "science and the useful arts". There is plenty of evidence that traditional industrial patents do exactly that. There is very little evidence that software patents do so, and plenty of evidence that they stifle innovation.

This isn't about morals. It's about asking what bargain society wants to make with innovators, in order to promote innovation. The software patent bargain is helping neither society at large nor innovators. Making sure that the lawyers like it is not one of the goals here.

Re:Patents should promote innovation

[Qzukk]

Moreover, "process" patents are almost always about "using X (that someone else invented) do Y (which X was designed to do)". If you invent the screwdriver, should I really be allowed to patent of using your screwdriver to turn screws?

Re:Patents should promote innovation

[betterunixthanunix]

Process patents were supposed to be granted on manufacturing processes that are not truly mechanical -- for example, processes involving complicated chemistry. That is fine, it is certainly in the spirit of the patent system and not simply "using someone else' invention for what it was intended."

Somewhere along the line, though, we got industrial processes confused with mathem^H^H^H^H^H software.

Re:Patents should promote innovation

[Trevin]

I've read evidence that industrial patents do not promote innovation, but hinder it instead. The most effective tools for profiting from either a product or a process are secrecy, complementary manufacturing, and market lead time. (Boldrin & Levine, [2008], "Against Intellectual Monopoly")

Re:Patents should promote innovation

[cgenman]

The obviousness criteria should be a lot more broadly applied than it currently is. For one, while copyrights allow for similar or identical expressions developed in parallel, patents do not. If you realize that someone can file their taxes * on the internet *, and I realize that someone can file their taxes * on the internet *, it's a first-to-file-take-all situation. If we allowed for independent / clean room developments, the water might be a bit murkier but at least the indefensible patents wouldn't survive a week.

Second, patents should involve some degree of experimentation and possibility of being wrong. If you don't have to think about whether or not the simplified abstract of the patent is right, it's probably obvious. Utilizing a form of magnetics to sort oil from seawater would be a patentable invention under this standard, in that it may or may not work. Some degree of thought went into it. Attempting to patent using an arrow to point the player in the direction of travel would not. Obviously it's going to work, because obviously that's what they're for. If more effort went into the patent's paperwork, than into the idea of what is being patented, the patent shouldn't not be granted.

Re:Patents should promote innovation

[jpapon]

processes that are not truly mechanical -- for example, processes involving complicated chemistry. That is fine, it is certainly in the spirit of the patent system

I'm not saying I like software patents, but I fail to see how a process that involves complicated chemistry is any less "math" than software.

It seems that they're both simply algorithms. One deals with how you control chemicals, the other with how you control electrons.

I guess all I'm really asking is how you can justify process patents, but not software patents? Are you saying that software is not a process?

Re:Patents should promote innovation

[drinkypoo]

Patents are intended to protect inventions. A device that implements a business method should be patentable, but a process using it shouldn't. Otherwise you'd end up with a patent on using RFID for inventory control, et cetera.

Re:Patents should promote innovation

[Anonymous Coward]

I've not seen any good evidence that any legal monopolies promote innovation. I'll agree that software patents are an even bigger mess, but that doesn't mean other patents are good.

Re:Patents should promote innovation

[betterunixthanunix]

Except that a chemical process operates on real, physical matter, while software operates only on abstractions like numbers. Software is entirely abstract; the closest an algorithm comes to an industrial process is computing how some industrial process should be carried out (which, if memory serves me, was the subject of the first software patent). I draw the line at abstraction -- something which is completely abstract should be beyond the reach of the patent system, which is logic behind the existing rule that mathematics cannot be patented (except when we allow it to be patented e.g. DSP patents, crypto patents, etc. -- all forms of software patents).

Re:Patents should promote innovation

[Staale Nordlie]

Patents exist solely to promote innovation. Or, more specifically, "science and the useful arts". There is plenty of evidence that traditional industrial patents do exactly that.

Cite?

Re:Patents should promote innovation

[Anthony Mouse]

I'm not saying I like software patents, but I fail to see how a process that involves complicated chemistry is any less "math" than software.

Chemistry is not math. Chemistry is described by math. There is no set of equations or software program that will actually cause crude oil to become gasoline.

It seems that they're both simply algorithms. One deals with how you control chemicals, the other with how you control electrons.

By this logic you can patent a work of fiction as a process of arranging letters on a printing press plate.

The problem is that software is purely abstract. Nothing stops you from having a power source that can supply five times as much energy as the sun, or a gear with a hundred million teeth, or a totally frictionless surface. There is nothing useful you can add as a claim limitation to reduce the scope of the patent from an idea to an implementation, without giving potential infringers a trivial way to avoid the patent.

Example: Suppose you want to patent RSA encryption. Limiting yourself to specific numbers of bits in the key or using a modulus from a finite list enumerated in the patent or anything of that nature would only be an arbitrary limitation that would allow anyone to easily avoid infringing the patent. But the alternative is the absurdity of issuing a patent on modular exponentiation.

Re:Patents should promote innovation

[CurryCamel]

Mod parent up!
This is the exact question I have always been asking, and never found a more satisfactory answer than:

There is no difference.

If someone comes up with a better way of producing potash or sorting a list than is currently known, they should be able to apply for a patent.
But the patent should be granted only if:
- the new method is truly novel
- the method improves the previous best known methods
- it is likely that no-one would invent the same thing in the time the patent is valid. Even if skilled in the art.

What all the commotion and FUD about software patents boil down to is that the entire field of software is so new, that there is still an avalance of inventions going on. I.e. the third point most never holds. The solution is not a blanket ban on software patents, but a more rigorous check in the patent granting process.

Re:Patents should promote innovation

[CurryCamel]

Why is patenting encryption by modular exponentiation absurd?

I had no idea modular exponentiation could be applied to encryption. If nobody else either had noticed this - then why should we not allow somebody to protect their invention?

What are the alternatives?

1) The idea is never put into use. Humanity doesn't get encryption by modular exponentiation.
2) The inventor builds an encryption product out of the invention. BigCorp Inc. reverses the code of the encryption program, and next version of their OS has encryption by modular exponentiation. The inventor gets a email saying "thanks for all the fish". Or a job offer, if lucky.
3) Inventor publishes the invention in a engineering journal. Same outcome as in case 2.

Now - I wonder if modular exponentiation can be useful for anything else than encryption?
Luckily the concept itself cannot be patented. But if I come up with a new use for modular exponentiation - don't you want me to share? Or do you just want me to share it for free. As in beer.

Re:Patents should promote innovation

[jpapon]

There is no set of equations or software program that will actually cause crude oil to become gasoline.

This is a straw man argument. There is also no chemical process that will allow me to check my email. That doesn't mean that chemical processes aren't processes. All this argument proves is that chemical processes are different than software processes because they deal with chemicals, rather than electrical signals. No kidding.

By this logic you can patent a work of fiction as a process of arranging letters on a printing press plate.

Actually, I would say that the process patents for chemical processes implies this. It certainly fits the criteria many here have posted of working with physical objects.

The problem is that software is purely abstract.

No, I think the problem is rather that we haven't found a good way to make patents apply to programs running on general purpose computers.

Re:Patents should promote innovation

[jpapon]

I draw the line at abstraction -- something which is completely abstract should be beyond the reach of the patent system

Fine, but I would argue that software processes are no more abstract than chemical processes. Again, one deals with performing certain actions on chemicals in a certain way, while the other deals with performing certain actions on electrons in a certain way. If software is math, then so is a chemical process.

Software controls how matter should be controlled, just as a chemical process does. Just because that matter is much smaller doesn't change the fact that something physical is actually occurring.

Software is exactly like a chemical process, just with a general purpose computer instead of a general purpose chemistry set.

Re:Patents should promote innovation

[Halo1]

What the GP meant is not that the distinction should be "is the abstract process carried out using electrons or chemical reactions". What he (presumably) meant, was "does the novelty lie in the abstract process, or does it lie in the physical process". Figuring out an energy-efficient way to split water into oxygen and hydrogen obviously can be represented via abstract formulas, the but the novelty does not lie in the maths but in the physical insight.

Conversely, an algorithm that performs a quicker FFT is an innovation in mathematics rather than in physics, even if when calculating that formula using a CPU uses less electricity. I.e., the fact that any kind of mathematics can be calculated using physical means (including our brains), should not suddenly render it patentable. The innovation is not a new understanding about how electrons work. And no, generally implementing that same innovation in hardware would/should/is not be patentable either (the innovation is not in how to build hardware). That why they came up with the integrated circuit layout design protection (although it's not very popular due to it being way narrower than a patent, and of course it's always more fun/interesting to have broad exclusion rights instead of narrow ones).

In general, this kind of philosophical discussion does not lead anywhere though. The easiest way to demonstrate why software patents don't work is to simply look at the negative effects of how they work in practice.

Re:Patents should promote innovation

[dlgeek]

Example: Suppose you want to patent RSA encryption

You mean like U.S. Patent 4,405,829 which was issued to Rivest, Shamir and Adleman and was enfoced requiring RSA implementations to be licensed until shortly before it expired in 2000? There's a reason PGP used El-Gamal and DSA for a long time without supporting RSA keys.

Re:Patents should promote innovation

[betterunixthanunix]

Except that software does not need to be implemented with electricity. You could run software using a complicated mechanical computer. You could run software using pen and paper. For many patented algorithms, pen-and-paper work is not even infeasible, just slower than using a computer.

Additionally, what you are interested in with software is not the electrons; you do not save electrons somewhere to reuse them later. The results of a computation are just as useful if they are printed, output as punched tape, transmitted as radio waves, or stored as electrons in a capacitor. The electrons are just a part of the machine that is running the software; they are not part of the software itself. Software patents do not say, "A method of manipulating electrons" because that is not what software is or does. Electronic computers happen to be the most effective way to use software, but software is not defined what sort of computer is used.

Re:Patents should promote innovation

[Anthony Mouse]

I'm well aware of that. I'm using it as an example of a patent that should not have been issued (because it's a software patent).

Re:Patents should promote innovation

[oxdas]

If the software patent system worked that way, I don't think people would have a problem with it. As it is constructed now, though, software patents are so broad that they are purely conceptual. This is akin to patenting using chemistry to perform a specific task, instead of on specific chemical process. When I look at a software patent, I use 4 tests to determine if I believe it should have been granted.

1) Does it fulfill its purpose of contributing to the useful arts and sciences?
test: Can an expert in the field recreate their EXACT process or invention by using nothing more than the patent documents? Most software patents fail here because they do not actually cover a fixed number of implementations, but rather all possible implementations.

2) Is it a patent on a specific instance or on an idea or concept?
test: Using the idea or concept demonstrated by the patent, is it possible to create another non-infringing implementation? If not, then it is a patent on the concept itself and not an implementation. Note: if there is more than one idea or concept being demonstrated, use the narrowest one.

3) Is it obvious?
4) Does it have prior-art?

Let me give you two examples:
1) Apple's slide to unlock patent. 1) Would an expert programmer be able to implement Apple's patent with no other information than what is in the patent documents? The patent is very specific on what is going on and so I would say it is a good example of a patent that passes this test. 2) Is is possible to unlock a device using physical contact to a touchscreen without violating Apple's patent? This one is difficult. Apple's patent covers any user interaction with a widget and continuous movement from on place on the screen to another for the purposes of unlocking the device. That is pretty broad, although if the graphical widget did not move across the screen, but instead changed colors, prompting you to drag your finger to another spot on the screen to unlock, I think it would be safely clear of Apples patent. So, Apple's patent probably clears this test. 3) Is it obvious? This is where Apple's patent fails in my mind. Using the movement of widgets to change state is not new, Apple's patent is a logical and obvious extension of it. 4) Is there prior art? In striking down this patent in the Netherlands last year, the Dutch court offered the2004 Neonode N1m as prior art.

2) Microsoft "Virtual Entertainment" patent. 1) Microsoft fails right out of the gate on this one. There are no specs detailing how this would work. If I asked 100 experts to implement this patent, I would probably get 100 different implementations.

Re:Patents should promote innovation

[Anthony Mouse]

Why is patenting encryption by modular exponentiation absurd?

There is no such thing as "encryption by modular exponentiation" as distinct from "modular exponentiation." They are the same piece of code. You don't see why patenting "(x^y) (mod z)" is absurd? Start with "it's in the prior art."

I had no idea modular exponentiation could be applied to encryption. If nobody else either had noticed this - then why should we not allow somebody to protect their invention?

Well, we can start with "somebody else had noticed this." Clifford Cocks at GCHQ (UK intelligence) was the first to discover the relationship in 1973.

But never mind that. You're asking the wrong question. The question is, why should we set back the field of public key cryptography by 20 years because too many third parties are unwilling to adopt a patented algorithm in any kind of standard?

What are the alternatives?

1) The idea is never put into use. Humanity doesn't get encryption by modular exponentiation.

You have provided no suggestion as to why this would have happened. The developers of RSA worked for MIT. Their jobs were to publish papers to maintain the prestige of the school as a top research institute. MIT has close to a ten billion dollar endowment. The probability that they would do less research if it couldn't be patented is approximately zero.

2) The inventor builds an encryption product out of the invention. BigCorp Inc. reverses the code of the encryption program, and next version of their OS has encryption by modular exponentiation. The inventor gets a email saying "thanks for all the fish". Or a job offer, if lucky.
3) Inventor publishes the invention in a engineering journal. Same outcome as in case 2.

What you're describing could be better put as "the discovery is published and the world is better off because now everyone can use it." The reference to major corporations adopting it is a red herring to stir anti-corporate sentiment; the large majority of software patents are filed by major corporations.

Luckily the concept itself cannot be patented. But if I come up with a new use for modular exponentiation - don't you want me to share? Or do you just want me to share it for free. As in beer.

You'll share it because it's the only way for you to make use of it yourself, and you'll benefit because you'll have a first to market advantage, and because you can copyright the implementation which prevents anyone from copying the idea itself without developing and testing their own implementation. Since the implementation almost invariably costs more than the idea to develop, anyone who copies the idea is on the same footing with respect to fixed costs as the first mover and so is incapable of undercutting the first mover's prices.

Re:Patents should promote innovation

[arose]

Software doesn't deal with electrical signals. Some particular hardware might be implemented using such, but it's not what software deals with. Software deals with abstracts.

Re:Patents should promote innovation

[Anthony Mouse]

This is a straw man argument. There is also no chemical process that will allow me to check my email. That doesn't mean that chemical processes aren't processes. All this argument proves is that chemical processes are different than software processes because they deal with chemicals, rather than electrical signals. No kidding.

It has nothing to do with electrical signals. Anything you can do in software you can do (obviously more slowly) with pencil and paper. You can do it in your head.

Your comment about checking your email is just proving the point. You can construct a chemical process that will allow you to check your mail. Information can be encoded in chemical compounds (the one most people think of is DNA, but there are other possibilities). The encoding method can be devised so that reactions between compounds represent mathematical operations and the products of the reaction represent the outcome of the calculations. You can build a chemical computer and run any program that you could run on any other Turing machine, including an email client. We have not found that to be more efficient than microprocessors, so we don't do it. If you found a way to make it practical, you could patent the machine -- but you ought not to be able to patent the software that runs on it, because software is just a series of mathematical operations.

Actually, I would say that the process patents for chemical processes implies this. It certainly fits the criteria many here have posted of working with physical objects.

The phrase "necessary but not sufficient" comes to mind. You can encode information in physical things. That doesn't make the information patentable, and it only ought to make the physical thing patentable to the extent it would be patentable independent of what information is encoded.

No, I think the problem is rather that we haven't found a good way to make patents apply to programs running on general purpose computers.

I can tell you why that is: The two most striking problems with software patents are that they are granted far, far more broadly than they ever ought to be, and that independent invention is not a defense even though it occurs vastly more frequently in software than in other fields. Addressing those problems will make software patents look almost exactly like software copyright, at which point spending many thousands of dollars prosecuting a software patent will be wholly superfluous and they might as well not exist.

Re:Patents should promote innovation

[tragedy]

Ok, but the software patent doesn't deal with "performing certain actions on electrons in a certain way". You could be moving the electrons around in completely different ways to still achieve the same end goal. Or you could be using a quantum computer, or a DNA-based computer, or a room full of people working on graph paper, or a positron-based computer, or a steam-powered analytical engine. For chemistry, the patent (presumably) only deals with real molecules. It shouldn't, for example, cover running the same process on computer simulated molecules. There might be other things courts would find it applied to though. If it ever became practical to work with anti-matter, and it turns out that chemistry rules work out the same for antimatter, courts might find that the anti-matter equivalent of a normal matter chemical process is covered by the same patent. Maybe if we found particles of some non-baryonic matter that obeyed an analogue of the chemical behaviour of baryonic matter with other other baryonic matter so that the same processes would form compounds with the same structure, just different constituents, courts would find that the same patents apply. Beyond those scenarios though, the underlying materials are important to chemical patterns. There simply aren't things other than standard baryonic matter that we can actually apply the processes too (apart from the simulations).

Re:Patents should promote innovation

[tragedy]

I had no idea modular exponentiation could be applied to encryption. If nobody else either had noticed this - then why should we not allow somebody to protect their invention?

The reason lies in the definition of the word "invention". Maybe nobody else noticed it, but it's accepted as fact that it was always there to be noticed and will always be there because it's math. Mathematical principles aren't invented, they're discovered. For example, Isaac Newton didn't invent calculus. You might be le to credit him with discovering the principles of calculus and with inventing a certain method of performing calculus, but the actual underlying math, however complex it might be, is viewed as a truth of the universe. Thus it's discovered rather than invented.

Now, it's true that you can stretch that definition of discovery to cover all invention and claim that all invention is just discovery. After all, all the "inventor" is merely discovering that a particular arrangement of the stuff of the universe (energy, matter, time and maybe space, although that might be covered already in the term "arrangement") achieves a particular, desirable end. You could then see that as an argument that everything should be patentable, but that's a false argument since all the original arguments for patents required that they not cover natural truths and only excepted "inventions" because they weren't. So, unless you go back to the beginning of the argument and justify patents from the start, considering discovery and invention to be the same thing invalidates the idea of patents.

Re:Patents should promote innovation

[tragedy]

This is a straw man argument. There is also no chemical process that will allow me to check my email.

But that's the thing, you're wrong. First of all there's very little doubt that a chemical process could be devised by which you could check your e-mail. None needs to be devised to prove the point however, because, when you check your e-mail, you're already taking part in a very complex chemical process that allows you to check your e-mail. Can you think of any part of the process of you checking your e-mail that involves forces or materials not covered in the term "chemical process"? Usage of electricity and fiber-optic transfer of light certainly are.

Re:Patents should promote innovation

[Halo1]

What are the alternatives?

2) The inventor builds an encryption product out of the invention. BigCorp Inc. reverses the code of the encryption program, and next version of their OS has encryption by modular exponentiation. The inventor gets a email saying "thanks for all the fish". Or a job offer, if lucky.

What happens now if you you publish an encryption product based on that algorithm:

• If the product supports network encryption, BigCorps 1, 2 and 3 sue you because they have patents on "network encryption"

• if the product supports file system encryption, BigCorp 4, BigCorp 5, Big Corp 6 or Big Corp 7 sue you depending on how you implemented it

• if the product just encrypts files, Big Corp 7 and Big Corp 8 will sue you (and Big Corp 9 if it's a symmetric key algorithm --so not modular exponentiation-- and you add support for using the encryption in zip files).

Now, those are results from just a quick google search, and obviously not all of those patents will be infringed by every implementation. However, how many small software have the resources to figure out which patents exist, whether or not they infringe on those patents (nobody likes being served with an injunction that prevents them from selling the software they designed and wrote all by themselves) and how to rewrite their software so that they won't on any currently filed patent, or patent that may be filed up to a year from now (grace period).

Indeed, good luck. I'll take my chances that someone else will reverse engineer what I did and try to duplicate my work, rather than that I have to watch out that nothing I did may have been patented within the last 17 years by at least one company.

Re:Patents should promote innovation

[Asic Eng]

There is very little evidence that software patents do so

I work in a department which files about 50 patents/year. We get a lot of pressure to do so, I've filed some myself, too.

The curious thing is: we don't read patents unless we are checking for prior art. I have the distinct impression that we are not unusual in this respect - from an engineers point of view, patents are write-only. They can't promote innovation, because engineers don't hear about them.

Re:Patents should promote innovation

[jackbird]

That's because 'willful' infringement of a patent carries a legal penalty of triple damages. This creates a perverse incentive for nobody to ever do a patent search with regard to software.

Re:Patents should promote innovation

[Theaetetus]

Except that software does not need to be implemented with electricity. You could run software using a complicated mechanical computer. You could run software using pen and paper. For many patented algorithms, pen-and-paper work is not even infeasible, just slower than using a computer.

... but a patent that can be infringed solely through pen and paper calculations is invalid, thanks to the Bilski decision. So, while your argument is correct, it's several years out of date.

Re:Patents should promote innovation

[Theaetetus]

It has nothing to do with electrical signals. Anything you can do in software you can do (obviously more slowly) with pencil and paper. You can do it in your head.

But, patents with claims that you can infringe in your head are invalid, thanks to the Bilski decision. That's a red herring argument.

Re:Patents should promote innovation

[Theaetetus]

There is very little evidence that software patents do so

I work in a department which files about 50 patents/year. We get a lot of pressure to do so, I've filed some myself, too.

The curious thing is: we don't read patents unless we are checking for prior art. I have the distinct impression that we are not unusual in this respect - from an engineers point of view, patents are write-only. They can't promote innovation, because engineers don't hear about them.

They're not supposed to, at least not in that sense. For most of the history of the patent office, patents haven't been available online... do you really think engineers were spending weeks and weeks digging through patent files in the 1920s?

Patents promote innovation through public disclosure. Prior to patents, if you came up with a commercially valuable idea, you'd keep it hidden as a trade secret as best you could. And if you published anything, it destroys the trade secret, so you couldn't publish anything - no white papers, no theses, no functional specs, etc. Your competitors, if they wanted to implement the idea, would also have spend time coming up with it too. Say it took you 100 hours, and you've got 100 competitors, all of whom are doing the same research and keeping the results secret... That's 10,000 manhours, of which 9,900 were redundant.
Now, on the other hand, if you can get a patent on your idea, you can publish lots of information about it. Your competitors can see that information - not just the patent, but your functional specification - and either purchase a license from you, or focus their research in a different direction. As a result, those manhours aren't wasted, but instead get moved to the next new invention.

That's how patents promote innovation - by taking away the incentives to keep trade secrets.

Re:Patents should promote innovation

[Anthony Mouse]

Is your point that Bilski made all software patents invalid? Because you can do anything in your head that you can do with pencil and paper if you take enough time to memorize it all, and you can do anything with pencil and paper that you can do with a computer.

Unless your point is that some programs are too complicated for someone to memorize during a normal human lifetime, and only those should be patentable? Because that seems like an extraordinarily vague and arbitrary line to draw.

Re:Patents should promote innovation

[Theaetetus]

Is your point that Bilski made all software patents invalid? Because you can do anything in your head that you can do with pencil and paper if you take enough time to memorize it all, and you can do anything with pencil and paper that you can do with a computer.

Unless your point is that some programs are too complicated for someone to memorize during a normal human lifetime, and only those should be patentable? Because that seems like an extraordinarily vague and arbitrary line to draw.

No, neither... Rather that Bilski made all software patents "with claims that you can infringe in your head" invalid. Specifically patents with claims that don't recite computers as part of them.

For example, if I claim:
1. A method for calculating a sum, comprising:
receiving a first number and a second number;
adding the first number and the second number to generate a third number; and
outputting the third number as a sum.

... we can agree that you can do that in your head, and the claim is invalid under Bilski. But, if I claim:

1. A method for calculating a sum, comprising:
receiving, by an input module executed by a processor of a computing device, from a user of an input device connected to the computing device, a first number and a second number, the first number and second number stored in corresponding registers of a memory of the computing device;
adding the first number stored in the first register and the second number stored in the second register, by a adder executed by the processor of the computing device, to generate a third number, the third number stored in a third register of the memory; and
outputting, to a display device connected to the computing device, the third number from the third register as a sum.

... you can't, by definition, do that in your head. You can do something very similar - the first, invalid claim - but you can't do the second one without involving a whole bunch of machine pieces, because the claim explicitly requires them.

Now, of course, that claim fails as being anticipated and obvious, but those are questions under 35 USC 102 and 103. Under 35 USC 101 and the Bilski decision, that claim is at least directed to patent eligible subject matter.

Re:Patents should promote innovation

[Anthony Mouse]

That sounds suspiciously like elevating form over substance. You could infringe the second claim with a four function pocket calculator. Moreover, if you can take something unpatentable and add "but on a computer," when "a computer" is in the prior art and, given the unpatentable thing, doing it on a computer is totally obvious, that seems like more sleight of hand than reasoned argument: If the entirety of the novelty of the alleged invention is the unpatentable part of it, you can't very well issue the patent and consistently claim that the thing is unpatentable. If you aren't patenting the thing that supposedly isn't patentable then what novel and non-obvious thing are you patenting?

Re:Patents should promote innovation

[Theaetetus]

That sounds suspiciously like elevating form over substance.

35 USC 101 is about form, not substance. Substance is novelty and nonobviousness.

You could infringe the second claim with a four function pocket calculator.

So? The original question was whether it could be done in your head. As you admit, it cannot. Now, I can readily agree that the claim is an obvious combination of a known technique and a known device, but that's a question of obviousness under 35 USC 103. It's not a question of patent eligibility under 35 USC 101.

You even note this here:

Moreover, if you can take something unpatentable and add "but on a computer," when "a computer" is in the prior art and, given the unpatentable thing, doing it on a computer is totally obvious, that seems like more sleight of hand than reasoned argument: If the entirety of the novelty of the alleged invention is the unpatentable part of it, you can't very well issue the patent and consistently claim that the thing is unpatentable. If you aren't patenting the thing that supposedly isn't patentable then what novel and non-obvious thing are you patenting?

That's exactly right. It is totally obvious if you add "on a computer," and if there's prior art that does each and every element of the claimed invention except including the computer, then it's an obvious combination to do it on a computer and the claim should be properly rejected under 35 USC 103.

... but that's obviousness. That doesn't have anything to do with whether something is directed to a patent-eligible process or merely an abstract idea. In this case, once a computer is required, it's not an abstract idea and cannot be done in your head... so it should be properly examined and rejected for obviousness over known prior art, not for being "pure math".

Re:Patents should promote innovation

[Qzukk]

Don't forget that BigCorp 1-9 all feel that their patent is SO important to the functioning of the product that they deserve a 20% cut of your gross. Each.

The world has moved on since discovering that steam can make you go forward. These days, every little thing is sufficiently complex (especially with "convergence" and having one tool that does everything plus patents on "doing X that someone else invented plus Y that someone else invented on one device") that it is covered by hundreds of patents, all of which have inventors who feel like their patent is so vital to your thing that they ought to command 2-3% of your gross.

Re:Patents should promote innovation

[CurryCamel]

Perhaps this distinction between invention and discovery is where I fail. I really don't see how there can be anything called "invention" by this standard. Once you discover something (say - a filament doesn't burn out when not in contact with oxygen), the invention step to a light bulb is, IMHO, trivial. Figuring out a good material for the filament might be lots of work - or just a discovery for the material scientist.

My point is not that everyting should be patentable. The light bulb perhaps should (have) be(en). My point is that with the current patent system is seriously flawed. This flawed system causes a lot of nonsense SW patents, and a few other ones too. ("Method for swinging on a swing" was revoked, but is the "circular transportation facilitation device" still valid? I probably don't need to list dubious SW patents for this crowd :) )
But this flaw should NOT be held against SW patents as such. They many times have just as much engineering work behind them as any other (proper!) patent. Rather, the argument should be held against the patenting system as it is implemented today.

A quick remedy would be to increase the level of the "inventive step" to seriously reduce the number of patents. That woud, incidentally, probably take care of much of the dodgy SW patents at the same time.

Re:Patents should promote innovation

[tragedy]

Well, the distinction isn't clear between discovery and invention. Pure math is one of those things that falls on the discovery side because just about anyone who is any good at math agrees because almost all of those people, while going through the process of learning math have experienced the process of independently rediscovering mathematical principles for themselves based on what they've learned so far. Then they learn (or figure out for themselves) inductive reasoning and it's just blatantly obvious to them that math itself is discovered and not invented. The same thing is actually true of just about everything in the universe, but it's not always so blatantly obvious to the experts who work in the field.

You give light bulbs as an example. Presumably because the light bulb is famous as an invention of Thomas Edison. The fact is, Edisons (or rather his teams) contribution to the lightbulb really was just a matter of discovery. Light bulbs already existed. They were either very power hungry or burned out too fast. The goal was to find a good filament material that could be used in cheaply mass-produced bulbs. There were lots of teams trying to achieve the same goal since they all knew it was possible, it was just a matter of finding the right material. Also, Edison's team didn't actually even discover the carbonized filament first, Joseph Swan is credited with that. So, really all the team Edison ran did was re-discover a good filament material. Then they later switched to an even better filament material: cabonized bamboo (already discovered by Henricg Globel). In any case, once Edison had secured a patents, you can bet that he, and the courts, interpreted them as broadly as possible. Using a completely different filament type wouldn't be protection against a lawsuit. Anyway, later on, William Coolidge developed a multiply coiled tungsten filament which was just an improvement on earlier work with tungsten. Looked at the way it actually happened, the light bulb doesn't look all that much like an invention either.

I can see your argument about the amount of engineering work that may go into developing an algorithm, the problem is that patents have never been based on how much work went into the development. And you know just as well as I do that opening the door to patents on pure math opens the door to trivial patents on every little thing. Patents are relatively easy to get, but a nightmare to fight in court. The patent office operates as if patent mistakes are easy to fix in court and the courts operate as if the patent office were practically infallible. The clearly stated definitions of what material is patentable is eroded beyond comprehension or outright ignored. The developers of some great idea that doesn't fall under a patentable area may go sadly unrewarded, but that tragedy is nothing compared to the unending parade of horrors that emerges every time things shift and a new area suddenly becomes patentable.

The whole idea of patents is rooted in the traditional practice of monarchs granting business monopolies to cronies. Modern patents are a post-enlightenment reworking of this idea to apply only to truly new inventions. That reworking seems to unravelling. We're back to having "legitimate" business method patents and the democritization of the process has largely failed. I don't want to just stop the scope of what's patentable from expanding, I want it to shrink. All the way back to nothing being patentable at all would be fine by me.

Re:Patent Trolls

[SadButTrue]

There's a large misconception about Microsoft being a patent troll. In fact, they have never used their patents to bully other companies. Only time they've used their patents is when other companies have tried to bully them. .

So you are claiming that HTC and Samsung have been trying to bully MS? How about B&N?

I hope you are least getting paid for being this wrong.

Crypto Patents

[betterunixthanunix]

Patents on industrial processes are not the same thing as patents on mathematics, and that is what cryptography patents are. At one time it was RSA that was patented, and the RSA patent contributed to the stagnation of cryptography deployment in the early days of the Internet (we are still feeling the effects of that now). Today, it is elliptic curve crypto that is being mired down by patents, and cutting edge cryptographic technology is languishing in obscurity because of it. Patents have been granted on lattice crypto, which is even more obscure than ECC.

Mathematics is not supposed to be patentable, yet somehow these crypto patents -- which are really just patents on algebra -- have been granted, and our national security is threatened by it (the NSA has licensed some ECC patents for use in certain security sensitive contexts, but that is not even close to what we need). That anyone could defend that situation is mind boggling to me.

Re:Crypto Patents

[TheSpoom]

Someone who profits from the situation, who can ignore all the societal implications of the actual patents, could defend it quite well. Like, say, a patent lawyer.

Re:Crypto Patents

[engun]

Interesting points about crypto and patenting mathematics.

But what is your take on patenting software in general? What is the difference between an algorithm and an industrial process? Aren't they both "recipes"? If so, should both be patentable? or neither?

Following from that, why is patenting beneficial for industrial processes but not for software?

I'm not really advocating patents nor renouncing them, just trying to get a better idea.

Re:Crypto Patents

[PPH]

What is the difference between an algorithm and an industrial process? Aren't they both "recipes"? If so, should both be patentable? or neither?

Neither. You should be able to copyright the implementation of an algorithm. But anyone who goes back to the first principles and derives their own implementation should be free to do so.

With industrial processes, it would be similar. You can't just copy some companies process documentation and build your own production line. But its that misappropriation which should be the crime.

Re:Crypto Patents

[betterunixthanunix]

I think the key difference between software and industrial processes is that software operates only on abstract data, while industrial processes operate on actual material. I cannot write a computer program that produces plastic, no matter how fancy the program is; the closest I can come is writing a program that computes how plastic could be produced using some machine or industrial process.

The dividing line is the abstract nature of software, which is itself just an extension of the abstract nature of mathematics. Your web browser is a mathematical operation that maps HTML, Javascript, CSS, and mouse and keyboard inputs to images (which are displayed on your screen). The Church-Turing thesis pretty much says this, using an abstract model of computation that is even more powerful than the computer that you are using to read this.

Now, to be fair, there are two things that influence my view on this matter. The first is that amount of theoretical work that I do, where algorithms and "software" are described in a very formal language, and so I tend to view all software as being mathematics; I know full well that a lot of people view software development as engineering work and would disagree with my "software is just math" view of the world. The second is that I do not accept the argument that copyrights are a form of property, which is a necessary view to have if you equate software with an industrial process.

Re:Crypto Patents

[betterunixthanunix]

However, there are some benefits to close source operating systems, especially to business who require 24x7x365 support, enterprise management tools, and feature/UI stability

1. This has nothing to do with patents
2. http://www.redhat.com/

I agree that trivial software processes should not be patentable, but when you put a series of trivial processes together to create an OS, a game, or an application, these should be patentable as they are non-obvious, non-trivial, and rises to the level of creation.

So by putting lots and lots of abstract things together, you somehow wind up with something that is not abstract? I said that I draw the line at abstract: something which operates only on abstract concepts should not be patentable no matter how complicated it is.

Re:Crypto Patents

[icebraining]

Are you confusing patents with copyright? An OS can't simply be copied because it's copyrighted. There's no need for patents.

Re:Crypto Patents

[elsurexiste]

What do we have here? An off-topic comment about something you said a while ago, in another comment. People don't change often, do they? :) Ah, well, I'll bite.

First, don't worry if it's mind boggling to you: nobody is perfect.

Timoschenko proved about a century ago that you only need mathematics to describe a machine, not even a picture is required. So machines, like cryptographic processes, are one level of abstraction away from pure mathematics (not kidding you here). Yet, somehow they are patentable. How does that evidence fit into your theory?

Either patents should not exist (which is not your thesis at all) or a different test on patentability is necessary (certainly not "It uses a lot of algebra"). How about we solve the apparent contradiction with this statement: cryptography has a strong base on mathematics, but it's not *just* mathematics. If there's a patent, maybe it would be something on the lines of "Process for secure transmission of messages over an insecure carrier. Step 1: Grab a numeric representation of the message. Step 2: obtain through the insecure channel, e.g. using Diffie-Hellman's method, these values. Step 3 to N-1: Perform these operations. Step N: Send it through the insecure line.". It's just a level of abstraction away from just operations, true, but it's the same with everything else.

Re:Crypto Patents

[betterunixthanunix]

So machines, like cryptographic processes, are one level of abstraction away from pure mathematics

Except that cryptography is zero levels away from mathematics; cryptography is based on complexity theoretic and probabilistic arguments.

Re:Crypto Patents

[engun]

Sorry about the delay in replying.

I'm not sure I understand why software operating on abstract data makes it fundamentally different though? It seems like an assertion, and not a fact? I think that in patents, what is being valued is not what it operates on, but the process by which it is achieved. For example, if a certain industrial process operates on air, which is available abundantly and has nil material value, it's not the air we patent right? It's the process, or recipe. In the software case, the "object" it operates on, the data, by itself has no material value. But nevertheless, both the software and the industrial process are both recipes, steps for achieving something. I don't understand the difference?

So it looks to me like, either both should be patentable or neither should be.

Re:Crypto Patents

[betterunixthanunix]

The issue here is not the value of the inputs or outputs, but the abstract nature. We are not supposed to grant patents on pure math, which is distinguished from an engineered product by its abstract nature; at issue with software patents is whether or not software should be considered purely mathematical, or if there is some non-mathematical aspect of software that justifies its patenability. I sit firmly in the "software is math" school of thought, and consider computer programs and algorithms to be abstract mathematical objects; as justification for this view, I point to the vast work on computability theory e.g. the Church-Turing thesis.

Now, if you want to debate whether or not mathematics should be patentable, that is another matter entirely.

Re:Crypto Patents

[engun]

I won't call this a debate, because a debate implies a particular position, and I don't have one. Let's just call it being the devil's advocate.

However, I will point out that the abstract nature of an algorithm, vs an engineered product has not really been established. By this I mean, a recipe for creating an engineering product is also abstract. For example, a sequence of steps A, B, C in manufacturing product X is abstract, until it is implemented in some concrete product.

Therefore, the "abstract nature" of software (also a recipe) provide no distinguishable difference from an industrial process (also abstract).

So all I'm saying is, there needs to be something more evident here which establishes the difference. Personally, I dislike that idea of any kind of recipe being patented, because I think they are all ideas at the end of the day, and attempts to claim rights to those are attempts to claim rights to thoughts, and ultimately, to police thought. However, I also see the need to compensate inventors. I just don't see a clear solution.

Re:Crypto Patents

[betterunixthanunix]

a recipe for creating an engineering product is also abstract. For example, a sequence of steps A, B, C in manufacturing product X is abstract, until it is implemented in some concrete product.

Unless it can be implemented, however, an engineering design is not useful at all. Simulating a car is very much different from having a car, simulating a circuit is very different from having a circuit, etc. Descriptions of engineered systems are not useful (other than as a way to teach engineering students); yet a description of an algorithm is the only thing that you really want. This is where the difference between an engineering design and a software system lies: a description of software is actually more useful than a physically realized version of the software (remember video game cartridges? Now imagine a world where all the programs you use were like that -- circuits that you had to plug in to your monitor, keyboard, and hard drive).

Re:Patent Trolls

[rotorbudd]

Damn, where to start?
How about:
Google not making anything.
Suppressing innovation.
Google justifying having those patents.

I know you're a troll, but you could be a little less obvious. OK?

Re:Patent Trolls

[Moryath]

In turn, take a look at Google who is outright buying companies to make their patent war-chest larger and larger. They're somewhat new company so they're only been preparing their chest now.

Meanwhile, how many companies have already filed patent lawsuits at Google already? I don't like it, and I definitely see it as a sign of how broken the patent system is, but Google's doing the same thing that most other big corporations do - they're trying to make sure they have a large enough patent war-chest that when the next group sues them, they can force it into a "well this guy says we're violating patent X, but they're violating our patent Y themselves" settlement scenario, the same sort of thing that happens all the time between big companies (look at the "patent-sharing access" agreements between, say, Intel and AMD).

It sucks, because it makes the patent system about fucking over the smaller companies and ensuring the big semi-monopolies are the only ones who can play on a level playing field. But that's how it works and WHY the patent system needs drastic reform.

Patents on math

[betterunixthanunix]

We are not supposed to have patents on mathematics, yet that is exactly what software patents are -- especially patents on signal processing techniques, cryptography, etc., which are the patents that most severely threaten innovation.

Re:Patents on math

[gstrickler]

Software isn't just math. If you claim that software is just math, then all engineering is just math. So, all products that require engineering to produce are simply math. Next, all design and architecture is just math, because actually implementing it is strictly an engineering (e.g. math) problem. It's an absurd claim based upon a faulty premise.

Re:Patents on math

[Anonymous Coward]

Well, then let them start patenting particular implementations (code) instead of this wide ass math bullshit. Of course then one could tivially reimplement the math....

Re:Patents on math

[betterunixthanunix]

Software isn't just math

Oh yeah?

https://en.wikipedia.org/wiki/Church-turing_thesis
https://en.wikipedia.org/wiki/SKI_calculus
https://en.wikipedia.org/wiki/Haskell_(programming_language)
https://en.wikipedia.org/wiki/Prolog

If you claim that software is just math, then all engineering is just math

No, claiming software is math is like claiming that engineering designs are math. The difference is that engineering designs are not useful until a physical system is built based on those designs, while software is useful regardless of how it is implemented. You cannot use the description of a bridge to drive your car over a body of water; you can use a description of a computer program to compute whatever the program computes. A computer program is purely abstract, like a number (in fact, computer programs can be represented as numbers, and can be used even when given in that representation), and computer programs operate on purely abstract things, and output purely abstract things. A computer program cannot build a car, it can only be used to compute how some specialized hardware can build a car.

If you are curious about the mathematical nature of software, I recommend reading any number of theory of computation texts; Sipser's book is widely used in CS curricula, but Kozen's book is also a good illustration. You might also want to read a book about lambda calculus / combinator logic if you are interested in formal ways of describing computer programs.

As I have said elsewhere, I draw the line at abstraction. Software is absolutely abstract; bridges, buildings, microchips, chemical processes, etc. all have to be physically realized in some way.

Re:Patents on math

[bzipitidoo]

Such hair splitting doesn't matter if we take things a step further: abolish all patents. Or at the least gut the patent system by getting the government out of the business of granting these monopolies and trying to enforce them, something a true conservative should support wholeheartedly. A patent was never supposed to be for just an idea. None of math, equations, software, facts of nature were ever supposed to be patentable. An idea had to be embodied in a physical device.

This has proven problematic, since many ideas that used to require physical mechanisms can now be realized entirely in software. One such kind of idea is any kind of clock. We should have swung away from patents altogether as this problem became clearer. Instead vested interests, not least patent lawyers, have pushed the system in the opposite direction. Now patents are granted on the most ridiculously vague and broad basic concepts, and we have defensive patenting, cross licensing, patent trolling, "business method" and "look and feel" patents. All of these are uses that do more harm than good, and take us ever further from the purpose of these artificial monopolies. For centuries, statesmen have been uncertain about the effectiveness of these IP systems. Now we know enough to confirm their doubts.

Re:Patents on math

[gstrickler]

The execution is a physical implementation using a mathematical model. However, the program is not "just math", it embodies many assumptions, user interactions, and processes that aren't "just math".

I'll give an example, lossy compression such as video compression. Determining what data can be removed with minimal perceptual impact isn't "just math". The process of determining what "isn't perceptible" wasn't determined by math, it was determined by humans doing a lot of work, designing and refining processes, and determining a set of parameters they could use as controlling factors in a particular model. Then there is a pattern matching, motion compensation, and redundancy removal, none of which is "just math". Again, it's a bunch of processes, driven by parameters that the designers of the compression system determined before hand. Much of the above won't even produce an exact answer, and might not even produce the same output every time, even when given the same input, if it must produce real-time output. In fact, such program may operate in part by trial and error, seeking the "best" result within the time and resource limits it has. Ask a mathematician if that qualifies as "just math".

Software is not just math, software embodies much more than just math. Software engineering is the practice of reducing software to a set of steps that can run on a specific computer system.

See Mathematics
Since the pioneering work of Giuseppe Peano (1858-1932), David Hilbert (1862-1943), and others on axiomatic systems in the late 19th century, it has become customary to view mathematical research as establishing truth by rigorous deduction from appropriately chosen axioms and definitions. When those mathematical structures are good models of real phenomena, then mathematical reasoning often provides insight or predictions.

Where is the "rigor" in the example above?

See also Computational Mathematics involves mathematical research in areas of science where computing plays a central and essential role, emphasizing algorithms, numerical methods, and symbolic methods....solving mathematical problems by computer simulation as opposed to analytic methods of applied mathematics...stochastic methods, such as Monte Carlo methods and other representations of uncertainty in scientific computation....

Re:Patents on math

[betterunixthanunix]

However, the program is not "just math",

Turing, Church, Kleene, Curry, and many, many other mathematicians who developed the field of computer science have shown otherwise. Computer programs are mathematical "objects," and there is a very broad theory about such objects.

it embodies many assumptions, user interactions, and processes that aren't "just math"

This is kind of like saying, "Applying the quadratic formula is not just math, it embodies other assumptions!"

I'll give an example, lossy compression such as video compression. Determining what data can be removed with minimal perceptual impact isn't "just math".

You are confusing the goal -- a lossy compression function that has some property -- with the program that you use to realize that goal, which is a mathematical object. The computer program that you use to encode a video using some codec is just an algorithm, and the program that decodes that video is also just an algorithm, and we have known that algorithms are mathematical objects for a very long time. The fact that you selected the algorithm that gives you the answers you wanted does not mean that you did something more than math.

Where is the "rigor" in the example above?

First of all, there are different levels of mathematical rigor. See, for example, the debate about this:

https://en.wikipedia.org/wiki/0.999...

That aside, the rigor was in the use of a programming language to describe the algorithm (perhaps less rigorous if you use a language like C, and more rigorous if you are using SKI combinators), and of a technique for checking that the source code described a valid program (using a compiler, or if you wrote the program in machine language, the computer that ran the program, which will presumably enter an error state if you have invalid instructions or instruction sequences). The fact that it is so automated does not make it any less mathematical; one of Turing contributions was to show that some mathematics can be automated. The program as it is stored on your hard drive is a formal description of a mathematical object, and it is not necessarily the only such description.

To claim that a program is more than just math is to claim that numbers themselves are more than just math. Without affixing units to numbers, numbers remain purely abstract. One of the things that engineers do is to assign units to numbers, and those units are what connect numbers to the physical world -- 1 meter, 10 volts, 6 electrons, etc., which give abstract concepts like 1, 6, or 10 a physically meaningful context. Likewise, a computer program is purely abstract (and can even be encoded as numbers without any units); your video codec is just an algorithm for mapping numbers from one set to numbers in some other set. The only reason your video codec is useful at all is that the numbers it computes describe how your video display can produce images, and the codec maps the numbers in a way that is related to the measurements taken by some specialized hardware (a camera).

In the end, though, this is a matter of philosophy, and the Church-Turing thesis is really a philosophical statement.. One can make the argument from the other side using the same statement: since a Turing machine represents computation, and since any program can be compiled into a description of a Turing machine and then be built as a special-purpose computer, a computer program is like a circuit diagram or a building schematic. I find this argument to be less than compelling, however, because algorithms are almost never physically realized (and even less often in an age of FPGAs), and because it is a statement that even very ancient algorithms like the quadratic formula or the Sieve of Erotosthenes are simply descriptions of machines, even though such machines were beyond conception at the ti

Re:Patents on math

[Theaetetus]

We are not supposed to have patents on mathematics, yet that is exactly what software patents are

Except that they're not... Pure software is unpatentable, but software tied to a machine is patentable. Once tied to a machine, it's no longer just math, but more like the engineering designs you distinguish in a followup post:

The difference is that engineering designs are not useful until a physical system is built based on those designs, while software is useful regardless of how it is implemented.

On the contrary, until a physical system executes the software, it's not useful, just like an engineering design on the back of a napkin. As you admit, software, like the designs, must be implemented to be useful... that implementation is what's patentable, not the raw software.

Re:Patents on math

[gstrickler]

You're confusing the goal and the program. The patent is on the technique for compression, not on the program itself. Software IS NOT JUST MATH.

Re:Patents on math

[betterunixthanunix]

The patent is on the technique for compression, not on the program itself

The different being what exactly? What differentiates these:

Add x to y

int f(int x, int y){return x+y;}

One is an English language description of a program, another is a C source code description. Here is another description:

(defun f (x y) (+ x y))

There is a set of numbers that encode this program for a computer with an x86 process, and some other set that encodes the program for a computer with a PowerPC processor. Would you claim that these are all "different programs?" If someone had a patent on addition, would the patent cover some of these representations of the program, but not others?

Re:Patents on math

[gstrickler]

1. English is not math. English descriptions are not math.

2. Your example bears absolutely no resemblance to a problem such as lossy compression. I never said software doesn't use math, nor did I claim that simple programs are anything more than math.

3. Show me the "math" in the patent. You can't, because it's not there. The patent describes the technique, not the math used for a specific implementation. It's not the math that is patented, it's the method. The patent is for the innovation involved in discovering and defining a method of doing something that is non-obvious. Converting that to a specific mathematical model for a particular implementation is a separate issue, and that's the reason that the patent protects not just one implementation, but separate attempts to implement the same technique. Implementations are covered by copyright, the method may be covered by a patent.

Re:Patents on math

[betterunixthanunix]

1. We can use English to describe mathematical objects. Like when we describe algorithms in a patent
2. What is or is not a mathematical object or concept is not defined by "simplicity;" see, for example, the Monster Group
   https://en.wikipedia.org/wiki/Monster_group
3. Computer programs are mathematical objects; go read the work of Church, Turing, Kleene, etc., or for brevity, a book on the theory of computation (I recommend Kozen or Sipser). The "technique" or "method" is the mathematics that is being patented; again, I refer you to the large body of work on computability theory. Mathematics is not limited to formulas and numbers.

Re:Patent Trolls

[andydread]

It looks like the trolls are flooding slashdot lately. Microsoft PR department is a powerful beast and they pay these trolls to spread misinformation on blogs and the like.

LOL

[sgt scrub]

He said "actual creators".

Explaining software patents to the patent lawyer

[Teppy]

I've noticed that most language in contracts is copied and sometimes tweaked language from other contracts. So, suppose as a lawyer you were required to negotiate a license for every sentence that wasn't your original text. Or more analogously, you were liable for even inadvertent use of phrasing that someone else had created first. For example:

Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

Have you ever used that phrase in a contract that you charged a client money for? It (or some minor variation) appears in license agreements from Microsoft, Adobe, Apple and Sony. And I'm pretty sure they don't all use the same lawyer. *I* would never have come up with that phrasing, but perhaps it's obvious to you, someone skilled in the art of contract law. Well, same thing for us software engineers - most of the software patents we see, and nearly all of them in the particular area of software that we specialize - are equally obvious.

Throw it out of the window

[G3ckoG33k]

Etymological series: Throw it out of the window > Defenetre > Defence

Hence: Throw the process patents out of the window.

Read the comments on TFA - hilarious

[wisty]

OK, since no-one read TFA, let alone TFA's comments:

TFAuthor clarifies his position:

>Traditionally, the "patent troll" (or "[whatever-kind-of-IP] troll") term has been reserved for companies that buy underenforced IP and then make money by litigating it. FWIW, I have little inherent problem with this "trolling" act either because it's simply investing in an asset (the particular IP) that is obviously well in demand. The original creator wins by being able to realize a purchase price for his creation without having to go through the trouble of managing the IP, and the investor wins through selling licenses and/or getting judgments and/or settlements on violations. In practice, of course, there have been legal system abuses, but that should not speak to the inherent practice.

In other words, there's no problem with leaving a bunch of cookies on a table, then selling the rights to cookies to a debt collector, who shakes down everyone who ate one for a fair price (determined through a process of valuing their kneecaps).

Re:Read the comments on TFA - hilarious

[DarwinSurvivor]

Actually no. It's like posting a bunch of recipes in post-it form on the community bullitin board, where anyone *can* find them, but won't unless they look. Then going around 10 years later and demanding money from anyone making those types of cookies, whether they evere even saw your post-its or not.

The summary contains a HUGE oversight.

why it would be A-OK for dozens of already megarich corporations to get even richer adopting technology they did not invent

Just because someone else invented something before you does NOT mean you did not ALSO invent it. His reasoning only makes sense if everyone already knew it had been invented. If I come up with a really good cookie recipe but only publish it in one recipe book (that few people bought), I can't really go after you if you happen to come up with a similar recipe without having ever seen mine!

Re:Read the comments on TFA - hilarious

[tqk]

OK, since no-one read TFA, let alone TFA's comments:

Guilty. :-(

In other words, there's no problem with leaving a bunch of cookies on a table, then selling the rights to cookies to a debt collector, who shakes down everyone who ate one for a fair price (determined through a process of valuing their kneecaps).

There are a lot of parallels that can be drawn between the way gov't works (patent system) and how the mafia works (protection rackets). It's always surprised me that people think they are entirely unrelated processes. It all comes down to how good/believable is your PR.

Re:Read the comments on TFA - hilarious

[thePowerOfGrayskull]

Why is there always SOMEONE here who sees a good analogy and thinks they can make it better - and in so doing turns it into a convoluted mess?

Person A: X is like Y when Z.
Person B: No, actually, X is like A when Y but also Z.

(And yes, I fully expect- in keeping with slashdot tradition - sometime to pipe up and tell me about Person C who thinks X is like B when A but not Y and also Z but not Z1. )

Re:Read the comments on TFA - hilarious

[DarwinSurvivor]

I'm not going for "better", I'm going for "correct". If the article author can't come up with an accurate logical premise, they shouldn't be using it as an argument. Especially being a lawyer.

Sorry,but I'm with him.

[cornicefire]

I know people like to make a distinction between physical and non-physical goods, but I'm less and less impressed by them. Potash is just stuff in the ground. It's almost as free as software. Yet just like information it takes work to organize it, refine it and bring it to market. So I increasingly don't see a difference. Oh, I know the old saw that you can make infinite copies of a digital file, but that ignores how expensive it can be to produce the first copy. We need to find a good way of protecting the folks who invest in that first copy. If that means patents, I think that's fine.

Re:Sorry,but I'm with him.

[JWW]

Patent trolls don't make a first copy. They sketch out a vague diagram and then say that anyone doom what they diagramed needs to pay.

I would love to see software patent suits require a demo of functioning software. But I have a suspicion that that woul make it too easy for juries to say "these aren't the same things."

Heck if I had my way anyone entering a courtroom for a software parent suit without being able to present a working software example of their parent should be shot.

Re:Sorry,but I'm with him.

[metacell]

Then people should be paid to refine and organise potash and bring it to the market, just like people should be paid to refine and organise existing algorithms and adapt them to a specific customer's needs.

Patents prevent people from doing that. The person who digs up potash from the ground can be sued if he does it in a way that someone else thought of first, and the programmer who applies algorithms can be sued if someone else came up with the same algorithm first. Both are prevented from profiting from their own work by patents.

Re:Sorry,but I'm with him.

[tqk]

Oh, I know the old saw that you can make infinite copies of a digital file, but that ignores how expensive it can be to produce the first copy. We need to find a good way of protecting the folks who invest in that first copy. If that means patents, I think that's fine.

ITYM copyrights, not patents.

I think I'm okay with Paul McCartney and his designated distribution arm being the only ones legally allowed to sell copies of Wings' music, because that (in theory) ensures he gets his royalty.

I'm not okay with Apple suing restaurants in Germany for using the generic word "apple" in their name. That's just lawyers abusing the system for no reason other than their greed.

Re:Sorry,but I'm with him.

[betterunixthanunix]

Imagine if this was patented:

https://en.wikipedia.org/wiki/Quadratic_formula

What differentiates a software patent from a math patent? Well, nothing, as it turns out:

https://en.wikipedia.org/wiki/Church-turing_thesis

Moreover, software patents have caused substantial harm to the state of computer security:

http://www.wired.com/techbiz/media/news/2000/09/38635

...and they continue to do so:

https://en.wikipedia.org/wiki/ECC_patents

We need to find a good way of protecting the folks who invest in that first copy. If that means patents, I think that's fine.

Let's try avoid reliance on this:

https://en.wikipedia.org/wiki/Artificial_scarcity

Re:Sorry,but I'm with him.

[ObsessiveMathsFreak]

We need to find a good way of protecting the folks who invest in that first copy. If that means patents, I think that's fine.

Absolutely. If you can bring me your first completed, value added copy along with your patent application, I'd stamp it for you right there. I'd reward the proof of your investment.

If you could show me the original copy first.

Re:Sorry,but I'm with him.

[aaarrrgggh]

Protecting the first copy is the job of copyright. You can bypass copyright issues with a clean-room implementation of the same concept.

Likewise, you don't have to use a patent to protect a secret algorithm, a la RSA. you just keep it secret and sell the implementation. If someone else can reverse engineer it,well...go for it. Short-duration algorithm or software patents are reasonable-- 2-3 years max. The time-to-market for an abstract concepts reasonably short.

Where I am unsure is things like LTE or CDMA. These things are built on years of research, and take years to become adopted as standards, and further years to be implemented. Maybe not every step or contribution justifies a patent, but you want to share create standards for the purposes of interoperability.

Wait, what?

[miltonw]

'What I do not understand is — had the jury determined Eolas's patents valid — why it would be A-OK for dozens of already megarich corporations to get even richer adopting technology they did not invent or have legal permission to use, but somehow immoral for the actual creators of the technology to likewise profit[?]"

What you do not understand, Mr. Stanganelli, is that Eolas DID NOT INVENT IT EITHER. Eolas is NOT the "actual creators" so why, to use your own logic, should THEY profit?

Re:Explaining software patents to the patent lawye

[TheSpoom]

Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

Pedantic, but I've always wondered why that phrase was necessary. In a contract with a severance clause (like every EULA ever), if the exclusion isn't legal, it just gets severed from the contract and the rest remains in full force. So why specifically mention it?

Invisible to Mr Stanganelli

[frisket]

Unfortunately, Mr Stanganelli won't get to see this, as I can't post it as a comment on his article because the registration procedure is four screens long and wants every last detail of my domestic and financial circumstances.

The three technologies he cites, online video, image rotation, and search bar autocomplete, were all well in use long before the so-called "inventors" "invented" them, so I cannot but agree with the judgement that the patent is invalid.

It sounds as if Mr Stanganelli is simply suffering from a nasty case of sour grapes because he simply doesn't understand the technology: he inhabits this bizarro world of patents and attorneys where it's seen as perfectly OK to hijack an existing piece of work and pretend it's your own.

Software Patents Stifle Innovation

[Software Geek]

it's a misconception that patents stifle innovation

The problem with software patents is that the legal standard of patent quality is too low. Something can be patented if it is novel and not obvious. I can write something that is novel and not obvious in an afternoon.

If I patent my afternoon's work, that doesn't enable me to sell it. So patents don't help me the innovate. On the other hand if tens of thousands of other people patent various things I could do in an afternoon, I am now legally obligated to respect all those patents, never doing any of those things unless I first negotiate a license with them. And I can get sued into bankruptcy if I make a mistake. And so the cost of avoiding infringing on low quality patents gets added to the cost of software development.

The patent system provides an incentive to be a software patent troll. It does not provide an incentive to develop software for people to use.

Re:Software Patents Stifle Innovation

[Theaetetus]

The problem with software patents is that the legal standard of patent quality is too low. Something can be patented if it is novel and not obvious.

That's a problem with quality of examination and 35 USC 102 (novelty) and 35 USC 103 (obviousness). That's not specific to software patents, nor a reason to make even novel and nonobvious software patents invalid under 35 USC 101.

I can write something that is novel and not obvious in an afternoon.

If I patent my afternoon's work, that doesn't enable me to sell it. So patents don't help me the innovate. On the other hand if tens of thousands of other people patent various things I could do in an afternoon, I am now legally obligated to respect all those patents, never doing any of those things unless I first negotiate a license with them.

The way patents encourage innovation is not by helping you sell an idea, but by removing the problems of public disclosure of trade secrets. If you publish your afternoon's work, then the tens of thousands of other people don't have to each waste an afternoon re-inventing your novel and nonobvious solution. They're free to work on the next solution, eliminating tens of thousands of afternoons of wasted manhours. That means we can innovate tens of thousands of times faster. That's how patents encourage innovation.

The price we pay for that huge increase is "the embarrassment of a monopoly," to quote Jefferson, while endorsing the patent system that he created. Patents aren't rewards, they're grudging payments so that you'll publish white papers and functional specifications so that others can innovate.

First to invent

[Chemisor]

Any discussion about patents must start by stating the fact that most patent infringements occur when its idea is reinvented, not stolen. So when you say that patents benefit the inventor, you must clarify that each patent only benefits one inventor, who was the first to register a particular idea. Thus we can rephrase the patent argument as: should people be rewarded for being the first to think of something?

Re:First to invent

[Anthony Mouse]

Thus we can rephrase the patent argument as: should people be rewarded for being the first to think of something?

I think more importantly: Should people be punished for being the first to successfully implement something they thought of merely because they were not the first to think of it?

Maybe it's just me

[larry bagina]

but I used to think patents were for the specific implementation of an idea, not the idea or the end result itself. Which is to say, someone else could (and is encouraged to as it promotes the arts and useful science) get the same end result using a different technique.

Let's say wifi-enabled mousetraps that detect when they've caught one are the next big thing. I might hook my mouse trap up to a scale and patent it. You might hook yours up to a motion detection camera and patent it. But claiming a vague patent for the idea of detecting a dead mouse doesn't advance anything.

Patent problems

[geoskd]

it's a misconception that patents stifle innovation

No it isn't... They Do

The author is a lawyer, so its no wonder he is defending the legal system. It pays his bills. Take the whole thing with a gigantic grain of salt.

-=Geoskd

Re:Patent problems

[kanweg]

Every patent application is published after 18 months. Society may well get information that way before a product is even sold.
Every patent application contains a detailed description of how to work the invention and to that end may well contain info you can't learn even if you have the product in hand. (If a patent application doesn't show how to work the invention it is unlikely to be granted. Except software patents, unfortunately). Having a proper description saves quite a bit of time over figuring things out for yourself. Society is saved from the burden of having to re-invent stuff.
Other people can make another invention base on the earlier invention and apply for a patent too. Thus they get bargaining power over the original proprietor as that guy isn't to do what the other people came up with too.

I've a client who was confronted with a patent for technology my client would have liked to use. The client then started thinking and came up with something better (and not covered by the patent). Patents can drive innovation.

So, while a patent can stop other people from doing things, it can NEVER stop people from building on that. Apart from that, a patent being a territorial right, there's usually plenty of countries where you can do your thing freely.

Bert

 

Re:Patent problems

[geoskd]

Having a proper description saves quite a bit of time over figuring things out for yourself. Society is saved from the burden of having to re-invent stuff.

That may have been true 200 years ago. maybe even 100 years ago. I would submit that you cant find me even one product on the open market today, that any part of was produced or engineered by reading any relevant patents from the last 50 years. People don't read the patents to find out how the device works, they simply figure out how to make their own version work and pray they don't get sued for infringing someone else's patent. Copyright, however, is a whole other animal.

-=Geoskd

Re:Patent problems

[Epimer]

Drugs.

There's a lot of good information in process patents for the manufacture of pharmaceutical compounds which will ultimately see wider use in other products. Process chemists and engineers put an enormous amount of labour into devising the best way to carry out a particular chemical reaction, and those reaction conditions are described in the patent for the production of a given drug molecule. Such information is then incredibly useful for others working towards making similar molecules (or completely different molecules, but using the same transformation), be they other companies, academics, or students.

Re:Patent problems

[Colonel Korn]

Drugs.

There's a lot of good information in process patents for the manufacture of pharmaceutical compounds which will ultimately see wider use in other products. Process chemists and engineers put an enormous amount of labour into devising the best way to carry out a particular chemical reaction, and those reaction conditions are described in the patent for the production of a given drug molecule. Such information is then incredibly useful for others working towards making similar molecules (or completely different molecules, but using the same transformation), be they other companies, academics, or students.

1) It's not just the world of pharmaceuticals. Look around you. Pretty much every material you see is the product of a ton of chemical engineering of some form or another, from polymer science to metallurgy. It's all complicated, and the work that goes into coming up with a patentable way to make your lightbulb last longer dwarfs the work going into things in the software patent world. But...

2) Patents on these processes or combinations of chemical properties are unbelievably vague. Let's say you find that toothpaste cures cancer if it contains 2.3% chocolate and is centrifuged at 3254 RPM for 17 seconds. Your patent will include these conditions in claims such as:

"The mixture must contain between 0 and 16% chocolate, 0 to 14% milk, 0 to 9% Windex, 0 to 40% action figures, 0 to 10% water, 0 to 12% ball bearings, and 0 to 6% of oysters, preferably between 0% and 5% of each."
"The mixture must be agitated in order to produce a cancer curing effect. Suitable techniques include manual stirring, riding in the back of an old jeep, spinning, or vibration through a variety of sonicating techniques. Agitation must proceed for 2 to 90 seconds."

Seriously, go read some patent literature. Yes, if you really know the science behind it you can sometimes learn things, but most of the time the central ideas are heavily obfuscated.

Re:Patent problems

[Epimer]

1) The post to which I was referring asked to name "one product", and so I did just that.

2) I've read (and continue to read) a lot of patent literature. I appreciate that the reality is that a patent proprietor (or their attorney) will necessarily draft the description to contain the minimum possible amount of information required to meet the requirement of sufficiency of disclosure. However, the "central idea" must necessarily be elucidated in sufficient detail for the ordinary skilled person to work the invention (so "if you really know the science behind it" is exactly the point; they're not written to be understandable by the lay person). It only gets more obscure around the periphery, and as patents are legal documents there is a certain art to reading them to extract the information you require.

Anyway, this isn't a purely hypothetical argument. I referred to the patent literature more than once when working towards my doctorate in organic chemistry, and obtained very useful information from such sources more than once. Information which wasn't available elsewhere. A patent would never have been my first choice of reference material, because journal articles don't have that disclosure/trade secret tension which is inherent in a patent, but the patent literature was far from uselessly obfuscated.

Re:Patent problems

[Colonel Korn]

1) The post to which I was referring asked to name "one product", and so I did just that.

2) I've read (and continue to read) a lot of patent literature. I appreciate that the reality is that a patent proprietor (or their attorney) will necessarily draft the description to contain the minimum possible amount of information required to meet the requirement of sufficiency of disclosure. However, the "central idea" must necessarily be elucidated in sufficient detail for the ordinary skilled person to work the invention (so "if you really know the science behind it" is exactly the point; they're not written to be understandable by the lay person). It only gets more obscure around the periphery, and as patents are legal documents there is a certain art to reading them to extract the information you require.

Anyway, this isn't a purely hypothetical argument. I referred to the patent literature more than once when working towards my doctorate in organic chemistry, and obtained very useful information from such sources more than once. Information which wasn't available elsewhere. A patent would never have been my first choice of reference material, because journal articles don't have that disclosure/trade secret tension which is inherent in a patent, but the patent literature was far from uselessly obfuscated.

Maybe I'm jaded by my current field. In the 5000 patents I read last quarter, something actually useful related to the central idea was decipherable in maybe 50-100, and that usually involved a team of 3 PhD experts in the topic working together for at least 10 minutes to sort the wheat from the chaff.

Re:Patent problems

[arose]

Yes, if you really know the science behind it you can sometimes learn things, but most of the time the central ideas are heavily obfuscated.

In your example it's more of a land grab. To make sure that if someone discovers that 3.1% choclate stired manually also cures choclate they are still fucked because you got the idea first., you get your royalties since

Re:Patent problems

[ZombieBraintrust]

Every patent application contains a detailed description of how to work the invention and to that end may well contain info you can't learn even if you have the product in hand. (If a patent application doesn't show how to work the invention it is unlikely to be granted. Except software patents, unfortunately).

If all software patents were forced to include source code and test cases we would not have as much confusion in the market. The source codes implementation would narrow all the patents. A comparison of the code would reveal if patent infringement occurred. The patent library itself would be a useful resource for companies.

Re:Patent problems

[Theaetetus]

Patents on these processes or combinations of chemical properties are unbelievably vague. Let's say you find that toothpaste cures cancer if it contains 2.3% chocolate and is centrifuged at 3254 RPM for 17 seconds. Your patent will include these conditions in claims such as:

"The mixture must contain between 0 and 16% chocolate, 0 to 14% milk, 0 to 9% Windex, 0 to 40% action figures, 0 to 10% water, 0 to 12% ball bearings, and 0 to 6% of oysters, preferably between 0% and 5% of each." "The mixture must be agitated in order to produce a cancer curing effect. Suitable techniques include manual stirring, riding in the back of an old jeep, spinning, or vibration through a variety of sonicating techniques. Agitation must proceed for 2 to 90 seconds."

Those statements would exist in the specification, which has no legal weight. The claims, however, would not include those statements, as they would be impermissibly vague under 35 USC 112.

Re:Explaining software patents to the patent lawye

[DarwinSurvivor]

I'm talking about Canada here, so it may be different elsewhere: If a contract is found to be overly biased to one side or includes any pieces not allowed by law, the ENTIRE contract can be deemed invalid in court, not just the offending part. By adding that simply line, they can say "that part of the contract doesn't apply to you" and avoid having the contract thrown out in court.

IANAL, but the "all or nothing" part was explained to me in a college law class.

All patents and copyrights harm progress, economy

[roman_mir]

All patents and copyrights cause harm to the economy and to progress, it is absolutely wrong to have government protect anybody's business model, regardless of what it is, and this includes special subsidy of the enforcement, court and penal systems.

Re:Explaining software patents to the patent lawye

[Ash-Fox]

Have you ever used that phrase in a contract that you charged a client money for? It (or some minor variation) appears in license agreements from Microsoft, Adobe, Apple and Sony. And I'm pretty sure they don't all use the same lawyer. *I* would never have come up with that phrasing, but perhaps it's obvious to you, someone skilled in the art of contract law.

You're making an assumption that you can have a copyright over legal texts and thus can't reuse it. Guess what...

Re:Explaining software patents to the patent lawye

[Nerdfest]

The added bonus is that in the case of software patents (and this analogy) it doesn't even matter if you some up with a better, more readable, more concise way to state this, you're still infringing. Innovation indeed.

Re:Explaining software patents to the patent lawye

[Gorobei]

Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

Pedantic, but I've always wondered why that phrase was necessary. In a contract with a severance clause (like every EULA ever), if the exclusion isn't legal, it just gets severed from the contract and the rest remains in full force. So why specifically mention it?

Two possible reasons:
1. Even with severability, there is the question of how much of the contract remains in force. This clause tries to define the portion of the contract that will be severed.
2. Even with a severance clause, you may not have a severable contract. The judge may just decide it's not severable: a contract is between two people, it has no
power to tell the courts what legal reasoning they must apply in a dispute.

Patent system problems

[geoskd]

In theory a person has to build whatever they are patenting, but process patents are much too broad, not being tied to an actual machine. Patents in general are no longer useful to society, and simply allow the lawyers to get rich at everyone else's expense. Patents made sense back when the time it took to reverse engineer a product was trivial compared to the time it took to design it in the first place. In an age when the time to design is less than the time to steal, patents serve no valuable purpose, and only the dark-side of patents is left. Whats worse, is that our patent system rewards those who get to the patent office first, not necessarily those who actually had the idea. Even worse, is that the patent system will award the whole pie to anyone who comes up with something even if someone a world away did the exact same thing, only didn't get to the patent office right away.

As a side note, ever had an idea and tried to figure out if some part of your idea is patented? What a flaming nightmare.

-=Geoskd

Re:Patent system problems

[Epimer]

Drugs, again :)

Pharmaceutical compounds still suffer from exactly that situation: discovering a molecule X for the treatment of condition Y takes a huge amount of R&D, but when the structure is known it's near-trivial to reproduce.

No patents please.

[AnotherBlackHat]

Imagine this story: University scientists, working diligently in their lab, invent something world-changing. Several big corporations steal the invention for themselves, making billions of dollars in profits. The scientists receive nothing.

You don't have to be a professional folklorist or ethicist to conclude that the scientists are the good guys and the corporations are the bad guys.

Imagine this;
Business has a problem.
They hire a software engineer to solve that problem.
The software engineer, working entirely on their own, writes a piece of software that solves that problem.
Business implements the software.
Patent holder sues business because software violates holder's patent.

It might take a professional folklorist or ethicist to determine who's the bad guy in that situation.

Now imagine a third scenario;
Business has a problem.
They hire a software engineer to solve that problem.
The software engineer, working entirely on their own, writes a piece of software that solves that problem.
Business asks if the software violates any patents.
No one has any idea.

Even a folklorist or ethicist won't help you resolve the patent issue in that third scenario.
And that's the real problem with software patents.
It's not business knowingly using an invention and not paying for it's development.
It's not business being forced to pay for something they didn't use.
No, the problem is not knowing.

Software engineers are notorious for reinventing the wheel.
We often don't look for existing solutions because it's easier to reinvent them than to find them.
I don't believe anyone in the current lawsuit read Eolas's patent and said "nice idea, it's mine now."
But they did have to go to court over it.

Only a lawyer would think that's a good thing.

Re:No patents please.

[LambdaWolf]

Your post makes me want all debates on IP law to be conducted in free verse from now on.

Re:No patents please.

[Sabriel]

Am I a folklorist or ethicist? Perhaps today.
The bad guy is obvious (to only one skilled in the art? I hope not).
Because in both of your scenarios,
The patent holder would be the bad guy;
For suing - because he wants consideration without contribution.
Yes, he did work, and should be compensated by those who use it.
But in your scenarios, however, nobody used his work.
They did their own work.

Re:No patents please.

[Theaetetus]

Software engineers are notorious for reinventing the wheel. We often don't look for existing solutions because it's easier to reinvent them than to find them.

That's horribly inefficient and stifles innovation. Seems the problem isn't with patents, but with software engineers not being up on the state of the art.

There are no vague threats

[Anonymous Coward]

Microsoft sells their patents to Intellectual Ventures, which creates companies that sue the competition. Intellectual Ventures was set up by Microsoft executives for just this purpose. Apple does no better. This is all made clear here:

http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack

Many "features" of both operating systems appeared in open source code first. Fortunately for the corporations, first to file is law of the land now. So are ridiculously long patent lengths. I wonder who paid for those changes in the law over the years.

IANAL, but I have gone toe-to-toe with several and have never lost. What Joe Stangenelli writes is based on simple debate tactics. In order to buy this lawyer's arguement, one must accept that software is "invented". The bottom line is that all software written for a flexible platform is not "invented". The very nature of the computing platforms and languages such as B.A.S.I.C. (The "A" stands for ALL-PURPOSE) indicate that ALL software that is written was intentionally made possible by the hardware manufacturer. Add to this that all software is reducable to math, and there is no valid arguement left to patent software.

Joe Stangenelli compares software patents with process patents, but fails to find the difference. Does the making of potash, or the process of pasteurization require a computer? Can these processes be reduced to math. The answer is a definitive "No" and that is where the comparison ends.

Joe Stangenelli also compares obtaining software patents to Warner Brothers obtaining permission from J.K. Rowling to make Harry Potter movies. Clearly he has trouble distinguishing the difference between copyright and patents. This makes his other arguements even more suspect.

I hate to say it, but Joe Stangenelli appears incompetent in his logic. Perhaps it is an intentional effort to effect the weak minded. Perhaps it is a failure of his training. Either way, Joe Stangenelli has clearly demonstrated the difference between intellegence and wisdom.

Re:There are no vague threats

[LordLucless]

I've never seen a post so misinformed rated "informative"

Fortunately for the corporations, first to file is law of the land now.

Which does not invalidate prior art.

So are ridiculously long patent lengths

US patents are 20 years, one year less than they were in 1836, and three years more than in 1994.

Re:There are no vague threats

[WolfWithoutAClause]

>ALL software that is written was intentionally made possible by the hardware manufacturer.

That's like saying that all books are made possible by the people that sold you the paper and pen; it's a false argument.

> Add to this that all software is reducable to math, and there is no valid arguement left to patent software.

Actually, in most cases it is possible to patent maths, provided it's a *part* of a design, not the whole thing. The whole point of patents is to commercially exploit an idea for money, and pure maths isn't exploitable, you have to build it into a system of some kind that has an interaction with the real world to do that.

The real argument against patenting software is to do with its effects on society when you do that kind of thing, and the general impossibility of people working out whether software does or does not violate any software patents or not.

Re:There are no vague threats

[Theaetetus]

I've never seen a post so misinformed rated "informative"

Fortunately for the corporations, first to file is law of the land now.

Which does not invalidate prior art.

So are ridiculously long patent lengths

US patents are 20 years, one year less than they were in 1836, and three years more than in 1994.

I've never seen a post so informative and correcting of misinformation rated "flamebait".

Senator Ben Cardin's take on patents

[InterGuru]

At a town hall meeting hosted by Senator Ben Cardin (D-Md), I stood up and complained that the patent system, which is supposed to help software developers, is instead a sword over our heads. I then gave two examples of recent ridiculous patents.

He replied that he is ( or was ) on the Commerce Committee and is aware of the problem. After the obligatory talk on the need to protect intellectual property he showed an awareness and sympathy to the issue. His last line was that when you want to use "1+ 1 = 2" you should not have to worry about someone having a patent on the plus sign.

Re:Senator Ben Cardin's take on patents

[bussdriver]

Tell him programming is just a form of math-- it is quite likely any CS professor he asks that will confirm that CS is mathematical-- since they still hold that math can't be patented.

Me, I find it odd that simple math turned into a million lines of extremely specific steps is patented broadly while some difficult solution that took 100s of years to discover that is only a few lines and is already very broad (like the currently patents given) can not be patented. Either both or neither can be.

Re:Senator Ben Cardin's take on patents

[betterunixthanunix]

it is quite likely any CS professor he asks that will confirm that CS is mathematical

Only theoreticians would say that; there are plenty of CS professors who view software development as a kind of engineering work, and who would say that software is related to math in the same way that circuits are -- mathematical foundations, but with something more. You and I both disagree, but unfortunately the US government tends to favor any argument that presents opportunities for businesses to open new revenue streams (regardless of the cost to society).

Re:Senator Ben Cardin's take on patents

[bussdriver]

Mathematicians make a decent living and they lack "protection" I don't see why software can not be unprotected just like their math. They still need computer people to engineer and support solutions.

The fundamental problem with patents...

[jurgen]

'What I do not understand is — had the jury determined Eolas's patents valid — why it would be A-OK for dozens of already megarich corporations to get even richer adopting technology they did not invent ..."

The fundamental problem with this guy's argument, and with patents in general, is that aforementioned megarich corporations DID invent this technology... regardless of whether the Eolas patent was valid by today's standards of what is patentable or not, Google, Yahoo and others sure as hell DID NOT COPY this technology from Eolas, their own engineers invented it, even if they were not the first to invent it.

The problem with the whole idea behind patents is that almost any technology is easy to invent once you put your mind to it, but with patents you basically should not put your mind to it, you should first hire an army of attorneys to read all the possibly relevant patents to find if someone has already "invented" it and then license it from them. Then, if you can't find it in existing patents, you can try inventing it, right? But many patents are so obfuscatedly written you could read them 10 times and not realize that they cover exactly what you're looking for.

Re:Patent Trolls

[jader3rd]

Microsoft PR department is a powerful beast and they pay these trolls to spread misinformation on blogs

I would be very surprised if that was true. It's quite possible that thereare people who legitimatly think/believe opposite of what you think. It's also possible that there are people who are misinformed, at as a result spread the misinformation.

Patent implementations, not algorithms

[msobkow]

The solution is simple. Only allow the patenting of IMPLEMENTATIONS, not ALGORITHMS.

Algorithms are DISCOVERED, not invented. They have always existed, the techniques by which computing gets done.

Can you imagine the shitload of trouble we'd all be in if some of the authors of the great programming texts and guides had PATENTED their algorithms?

*shudder*

Re:Patent implementations, not algorithms

[Animats]

Algorithms are DISCOVERED, not invented.

Er, no.

Re:Patent Trolls

[MightyMartian]

They've certainly made threats against Linux based upon vague patent claims, and though not via patents, they were at least partially bankrolling SCO's spurious IP claims against Linux.

X, but with computers/internet/iWindows/databases

[roguegramma]

I'm particularly upset about the rise of "X, but with computers/internet/iWindows" patents.

Clearly, if something is done on paper, it is possible to do the same digitally, where is the innovation in implementing it?

Re:Patent Trolls

[MightyMartian]

Microsoft has always done this. I've been on Slashdot now about nine years and Microsoft has frequently astroturfed this place. And then every year or so there will be the quisling that Microsoft hires from the open source community to be in charge of whatever-they're-calling-their-Linux-lab-now, who will inevitably come here with an olive branch... dipped in arsenic. And let us never forget the level pro-SCO astroturfing that went on here in the day, and you still get a few of those old trolls making rude noises about Pamela Jones. Some, if not all of those guys were ultimately being paid by Microsoft, one way or the other (well, except Daniel Lyons, a fucktard of such incredible stupidity that he actually did it for free).

Re:Patent Trolls

[icebraining]

Or TomTom.

Thank God MS defeated that TomTom bully!

[Anonymous Coward]

Image those bullying thugs over at TomTom trying to push around poor, little, defenseless Microsoft.

Did they really invent something?

[Ice Station Zebra]

In the 1990s, three University of California scientists allegedly developed and patented features that have become integral parts of what we today know as the "Interactive Web" -- including online video, image rotation, and search bar autocomplete. Eolas Technologies (a company owned by one of the scientists) and the University of California are suing several major companies -- including Internet heavies like Adobe, Amazon, GoDaddy, Google, and Yahoo, and retailers like Staples and JC Penney -- that allegedly employ these patented features.

Please show me where these "scientists" actually invented something. Online video? Ever hear of something called TV. Image rotation? Really, isn't that just an application of a matrix transformation. Search bar autocomplete? Isn't that just navigating some kind of tree like data structure and displaying the results. I just can't see the non-trivial innovation in these examples, maybe if I had no clue about math or computers, sure, but there is nothing here remotely outside the norm.

Maybe we need to rethink who we are labeling "scientists" in this day and age. Seems our standards are pretty low.

Re:Did they really invent something?

[mcavic]

Yes, this is what I have a problem with. The purpose of a patent, I believe, is to protect your finished product, so that someone else can't copy you and sell the same thing that you're selling. But a feature is not a finished product. By patenting features, you're preventing others from using the same features in non-competing products.

Re:Patent Trolls

[ColdWetDog]

Ah yes, Mr. IRCTech who has exactly 2 posts - this one and the a canned post about trolling.

Thanks for yet another insightful first post, guy. Hopefully you got at least one free espresso from all of your hard work.

It's not always about immediate profit, asshole

[EdwinFreed]

I'm a co-creator of MIME. I was recently interviewed about it, and one of the questions that came up was why we didn't patent it?

The obvious answer is it simply didn't occur to us, but even if it had, I very much doubly we would have done it. Our primary purpose was to change the capabilities of existing and future email systems in a fundamental way. (A secondary purpose for me at least was to drive a stake through the heart of X.400 - having just done an implementation of that mess, I was deeply worried that its very limited multimedia capabilities would drive its deployment in place of the much simpler Internet email protocols, and the entire world would have been much worse off had that happened.)

But neither of those goals could possibly have been met by patented technology. To be successful we needed as many implementers to adopt the technology as soon as possible, and a patent would have prevented that. (One of the reasons MIME is a bit ugly in places is because we believed that being able to implement and deploy it on top of existing infrastructure trumped design niceties.)

And while I can't speak for Nathaniel or Keith, it was certainly possible for me to profit from our work without a patent. But I did it the old fashioned way - by building a good implementation and selling it.

Of course there are situations where patents make sense, like to protect small inventors who come up manufacturing process or whatever. But there are lots of cases where they don't, and right now things are canted much too much towards patenting everything, even in cases where it actively stifles innovation and progress.

Re:It's not always about immediate profit, asshole

[Alioth]

What is wrong with X.400? I presume like all other X.something standards, it's an unwieldy, unextensible "designed by committee" thing where you have to pay thousands to get access to the actual standards documentation. Am I right?

Re:It's not always about immediate profit, asshole

[EdwinFreed]

Well, of course all of that is true about X.400, but really, that's the minor stuff.

For starters, let's talk about addresses. You can forget about there being anything simple and usable like user@domain. In X.400 an address is a collection of attributes and corresponding values. (In X.400-1984 there were about 15 of these, X.400-1988 expanded the list to around 30, and if memory serves you could also define your own attributes identified by an OID.) And there was no, repeat NO, defined string format for writing these things down. (This was finally addressed in the early 90s when the problems with not having a way to write addresses in a consistent way on, say, a business card became too painful to ignore. Of course they picked a different format than the one that was in common use - "a1=v1; a2=v2; ... aN=vN" versus "/a1=v1/a2=v2/.../aN=vN" - leading to even more confusion.)

So what are the attributes? Well, the stuff that corresponds, more or less, to the user part of user@domain is over-designed and overly restrictive but workable - surname, given-name, initials, and generational-qualifier are the main ones - but instead of a domain you have three attributes: prmd (primary domain), admd (administrative domain) and c (country). prmd is basically the name of your company or something similar. admd is the name of your service provider. See the problem? Every address is tied to your provider - no address portability. (Again, this was addressed at some point by allowing an admd of a single space, the idea being that there would be this gigantic network-wide white pages X.500 directory that would provide the missing information. Which of course never deployed and given privacy concerns never could have.)

Let's move on to routing. The assumption in X.400 was that everyone would simply direct connect to a service provider, so routing was the service provider's problem. And by some incredibly twisted logic that I never could follow that meant it could be left entirely unspecified! I quite literally had to invent a format for routing tables for our implementation. Everyone else did the same, so of course they were all different.

I'll skip the format for headers - lots of problems there, including no extensibility whatsoever in X.400-1984 (and very few ever bothered to upgrade to X.400-1988) - but most of them are rather complicated and would take too long to describe.

Message bodies consisted of a series of parts. The main one was essentially equivalent to "text/plain; charset=us-ascii". So what about other scripts? Well, there was a type of part based on T.61, where you use ISO-2022 escape sequences to switch into various other charsets, but it was wildly complex and never interoperated worth a damn. So in X.400-1988 they introduced a general-text body part that was slightly better, except that almost nobody implemented it. Seems they implemented a different body part that was only defined in a *draft* of the standard and later removed from the final version. (Since I didn't have a copy of the draft I had to reverse engineer it from dumps of the ASN.1.)

There were predefined parts for images (based on T.something-or-other, think lo-res FAX) and audio (audio/basic, nothing else), and a couple of others I forget. And there was a catch-all part equivalent to application/octet-stream, no parameters allowed. Want to send around arbitrary typed content? Sorry, not possible. (Again, this was addressed later on with the definition of the file-transfer-body-part, a hugely complex nightmare that labelled types with OIDs.)

There was also a message part that allowed for nested messages, but there was no other way to nest parts like MIME provides or any way to label a collection of parts. So you can forget about multipart/alternative, multipart/related, or anything similar.

Enough about the envelope and message format. Let's talk about the protocols. MTA to MTA transfers used something called RTS (later RTSE) that sits on top of the OSI stack (

Re:It's not always about immediate profit, asshole

[Alioth]

Thanks for the insight. I guess we can all be grateful that *all* of the ISO-OSI stuff fell by the wayside and we got the internet instead.

Re:Patent Trolls

[ColdWetDog]

Did anyone else notice the recent copypasta ITWorld or whoever articles that read like press releases from Microsoft's website?

Recent? You must be new here.

ITWorld, InfoWorld and it's ilk have been using Microsoft press releases since it was just Turtles going up.

back to basics

[markhahn]

-- IP protection is not a natural right, but a socially-granted monopoly.
-- the purpose of IP protection is to promote progress.
-- the IP must be specific, novel and non-obvious.

IP is not about protecting profits, put actually about ensuring that your IP is known to your competitors, enabling them to make it better. thus encouraging them with profits for having improved on your idea!

Re:Patent Trolls

[ColdWetDog]

They really look like they want UID counter to overflow, lol.

I've got an idea. Any new account gets a 30 day blockout from using "Apple", "Microsoft" or "Google" in the comment. That would cut down on the trolling and improve the general quality of discussion as we have enough of those sort of experts here as it is.

Nambla's chairman defends pedophilia, news at 11

[Nicolas MONNET]

I'm sure Nambla's chairman could (and probably has) come up with a nicely worded defense of pedophilia. It would be marginally more offensive than this trite, but both just as convincing and moral as this piece of shit.

Re:I tried to RTFA, but the bullshit detector went

[tqk]

Critics nonetheless mewl argue that patents "stifle innovation."

"Can we STOP THE GODDAMNED MEWLING!?!"
                                              -- Kira; "Chronicles of Riddick".

This is like arguing that requiring people to pay money at a restaurant "stifles feeding," or that making it illegal to steal a UPS truck to start a delivery service "stifles entrepreneurship."

WTF does that even mean?!? "Bandaids stifle bleeding. Breathing stifles asphyxiation." Er, what? Did you have a point to make?

Notice the techniques of propaganda in TFA.

[hey!]

He posits a hypothetical example that in the terms described, no reasonable person would disagree with:

Imagine this story: University scientists, working diligently in their lab, invent something world-changing. Several big corporations steal the invention for themselves, making billions of dollars in profits. The scientists receive nothing.

You don't have to be a professional folklorist or ethicist to conclude that the scientists are the good guys and the corporations are the bad guys.

Sure, because he's just told us the big corporations *stole* something. If we start from that characterization of what happened we'd have to agree, because stealing *by definition* is wrong. We never call rightful and proper uses of things "stealing". He then goes on to make a completely unsubstantiated claim:

In the 1990s, three University of California scientists allegedly developed and patented features that have become integral parts of what we today know as the "Interactive Web" -- including online video, image rotation, and search bar autocomplete.

What evidence does he present that these scientists "invented" anything? None. His characterization of this event is buttressed only by an ad hominem attack on people who disagree with him:

Technology pundits come from Bizarro Technology Punditry World, where up is down, black is white, and Google+ is the best thing ever.

So we aren't supposed to agree with *those* people on patents because he happens to think they're weird? Because they don't like the same things as us? He goes on to say, without any apparent sense of irony that these "bizarro technology pundits" are:

...ever fond of villainizing anyone [who disagrees with them on Internet patents]...

Next he gives us a spectacular display of weasel wording:

To be clear, I am not commenting on the actual results of the case. Not having seen all of the evidence or been in the courtroom, I do not attempt to second-guess the jury; they may well have made the legally correct decision.

So if he's not arguing about the "actual results" in this case, just what the heck is he talking about? We're supposed to feel pity toward the plaintiff,outrage at the defendants, and contempt toward the defendants' supporters -- on what basis? On the basis of something that *might* have happened but didn't? Because he thinks the defendants are greedy and rich, and their supporters are "bizarro pundits" who like Google+?

He's calibrated his imprecision very precisely here. He says has "not seen all the evidence", but does *not* tell us what evidence he *has* seen, or whether he has seen any evidence at all. This makes him hard to argue with -- we don't know which of his claims apply to what actually happened, and which apply to a purely hypothetical world of his own imagining.

Apparently he feels he can stand in the safety of that hypothetical world and lob his opinions at people in the real world :

What I do not understand is -- had the jury determined Eolas's patents valid -- why it would be A-OK for dozens of already megarich corporations to get even richer adopting technology they did not invent or have legal permission to use, but somehow immoral for the actual creators of the technology to likewise profit.

Note how he *predicates* his indictment of the defendants (aka the "megarich corporations") *on something that did not happen* ("had the jury ..."). I started counting the logical fallacies in this statement and gave up when I hit six (straw man, begging the question, appeal to pity, appeal to spite, appeal to authority, and two different kinds of red herring).

Frankly, the reasoning in the article is so weak the only value I can see in discussing it is as an example of deceptive and faulty argumentation. I'd be interested in hearing a more robust argument, say from someone who wants to argue a natural property right to ideas.

Re:Patent Trolls

[MightyMartian]

To be fair, they did end up playing nice with the Samba team, but only with a gun to their head.

Re:Patent Trolls

[Curunir_wolf]

The very idea of thinking you need "defenses" against [possible threats] that are far greater than every other asset you have, describes these "people" as violent paranoids. It's behavior we would be begging the police or social services to investigate if actual people were doing it.

You should absolutely call report those people. Ask for the pre-crime division when you call.

Donald Knuth opposes software patents

[symbolset]

I'm going to go with "argumentum ad verecundiam" here - I know... bad form.

Here's Professor Emeritus Knuth's Letter to the patent office.

Here are a collection of quotes with references.

If you don't know who Donald Knuth is, you should find out before trying to participate in this discussion. It seems unlikely to me there exists a software patent that isn't derivative of his work.

And since I'm a Groklaw fan, here's a Groklaw article about the good professor's views on the subject.

Absurd doublespeak

[SoftwareArtist]

It's remarkable how completely opposite his argument is to reality. Consider:

why it would be A-OK for dozens of already megarich corporations to get even richer adopting technology they did not invent or have legal permission to use, but somehow immoral for the actual creators of the technology to likewise profit[?]

So the companies that have spent years writing actual software and creating useful products "did not invent" it. No, the "actual creators of the technology" are the people who applied for a vague patent that somehow covers any sort of "interactivity" on the web, an idea which apparently no one else in the world would have thought of without them. That's what patent lawyers think it means to "invent" something. They're speaking a bizarre language that uses words to mean the exact opposite of what everyone else means by them.

Re:Patent Trolls

[Colonel Korn]

Microsoft has always done this. I've been on Slashdot now about nine years and Microsoft has frequently astroturfed this place. And then every year or so there will be the quisling that Microsoft hires from the open source community to be in charge of whatever-they're-calling-their-Linux-lab-now, who will inevitably come here with an olive branch... dipped in arsenic. And let us never forget the level pro-SCO astroturfing that went on here in the day, and you still get a few of those old trolls making rude noises about Pamela Jones. Some, if not all of those guys were ultimately being paid by Microsoft, one way or the other (well, except Daniel Lyons, a fucktard of such incredible stupidity that he actually did it for free).

Wow, citation needed. In the real world we call a long list of accusations without any evidence to back it up bullshit. I'm open to the idea that you're right, but in my dozen years reading and half that time posting on Slashdot I've only seen this sort of claim presented as if it were self evident, but never backed up by an iota of evidence. So please, if it's true show me the evidence. If it's based on conspiracy theories, withdraw it.

Re:Patent Trolls

[MightyMartian]

I neither have the capability nor the desire to go through Slashdot's archives. You can take my word for it or not, but I'm sure I'm not the only one who remembers the frequent attacks on Pamela Jones on Slashdot. I won't withdraw it, so that's that.

Attorneys on patents

[jduhls]

All I hear when an attorney talks about patents is, "but what about my yacht payments? My condo?!? My blahblabobloblaw$$$$$$$$...?!?!??"

idea to improve the patent system

[dog77]

Require a patent holder to set a price for every use of their patent. For each use of the patent a 50% tax must be paid to the government. One purpose of the tax is to keep the patent holder from setting a riduclous use price on the patent.

Anyone can use that patent if they pay that price per use. Where 50% of the use fee would go to the patent holder and 50% would go to the government.

This might not solve every issue with patents, but it is a step in making patents more fair. It prevents complete monopolization of an idea. It prevents someone from making ridculous claims on worthless patents. It puts a fixed value on the patent use, preventing someone from suing an infringer for some arbitrary amount.

Patenting: Cars vs Computers

[darkonc]

The argument used to allow for patenting software is that, by loading a new payload (program) into a General Purpose Computing Device ( Computer == GPCD) you create a slightly different (at a quantum level) device, and the 'modified' GPCD is thus patentable.

So, let's run with this theory and compare it to motor vehicles... (General Purpose Transport Device ==GPTD). Similarly, by loading a new payload into a GPTD, you would end up with a 'modified' GPPD. Now, let's presume that, after GPTDs had been invented, the patent office had allowed patenting different payloads, there. Now, someone patents loading carrots into a GPTD, and someone else patents loading lettuce into a GPTD. Now someone patents loading chickens into GPDTs and someone else patents loading dead chickens into a GPTD. . . . . . You can see where this is going.

Next thing you know, to take your grocery home legally, you have to arrange patent licensing with potentially hundreds of different patent holders. -- and the GPTD developers aren't going to do the work on your part because the number of patents would be growing almost infinitely, and arranging all the possible patent licenses would be almost impossible. Even if it was possible, it would raise the price of a GPTD by orders of magnitude, and price them out of the market.

This would be a clearly absurd situation

(( Hmmmm.. Could patent holders for computing devices sue the patent trolls for necessarily volating their patents in the process of trolling? ))

The second argument against software patents is that defending against one can exceed the cost of the developed software by orders of magnitude. I could easily write a program that arguably violates any number of software patents in an hour or two -- total cost: $100 or so, if you include my time. Defending against any one of those patents -- even the most obvious or inapplicable -- would cost me tens of thousands of dollars, if not millions. In other words defending my right to defend my $100 program could cost me hundred, if not thousands of times what it cost me to develop it -- even if I win every suit hands down.

It's just not economically viable.

Re:Patenting: Cars vs Computers

[MSTCrow5429]

Argument one is wrong. The author is referencing 35 U.S.C. 101 subject-matter eligibility; while Bilski left open the possibility of alternatives to the machine or transformation text, none was suggested, and subsequent cases in the lower federal courts have continued to use the machine or transformation test exclusively. This appears to be an argument that under the machine or transformation test, loading or running a program on a general purpose computer transforms the computer into a different state or thing. This is not and has never been the case, and Bilski implicitly rejects this paradigm. The transformation prong also has no applicability to placing carrots or any other produce onto a truck. If the author wants to understand process patents, I suggest starting with Diamond v. Diehr, 450 U.S. 175 (1981). Google Scholar is a good resource for anything but the most recent cases, but keep in mind it's not Key Cited; one may have to go through all citations themselves if uncertain of its current status as good case-law, which is available in a tab.

Small inventors implement / Big companies patent

[RobotFuture]

I work for a large company that encourages employees to submit ideas for patents and makes it very easy. You simply submit an idea and the army of lawyers broadens it into a patent application. I've patented several ideas for the company this way that will no doubt never be implemented - they will only be used for lawsuit purposes.

Now I want to implement some of my own ideas. The problem is - for me as an individual, the cost of filing a patent is a big risk. It's expensive, and I don't know which of my ideas is going to turn out to be the valuable one. The best way to find out is to implement and release, and see if the product is successful. If it fails, I'll try the next idea. The problem is that once I've released and know the intellectual property that's worth it for me to spend my meager funds protecting, it has become public knowledge and can no longer be patented.

So the small inventor or start-up has a dilemma - they are the ones that need protection for the ideas the most so that huge companies cannot spend huge resources overwhelming them, but they do not have the resources to patent their ideas.

The obvious solution - software patents go to the first to implement. Then big companies can't buy the entire intellectual property space and small inventors can try implementing their idea without worrying about whether they should spend all their money protecting the intellectual property.

Weigh the Sources

[Tablizer]

The vast majority of new software ideas are created to solve a specific issue for a specific project or product being worked on. There are very few productive software "invention labs" of the kind Thomas Edison ran. Thus, if software patents disappeared, at the very worse it wouldn't change the invention rate much since the per-product effort will still be made; and at the best smaller co's could better use mix-and-match for new products without fear of "submarine" patent lawsuits. Thus, the benefits weigh toward doing away with "process patents".

Re:Explaining software patents to the patent lawye

[Ash-Fox]

That's probably the point. So-called 'IP' lawyers often tout the benefits of 'intellectual property', but the legal system has a huge free culture ecosystem, using the precedents set by other judges (convinced by other lawyers) as well as many other things. If such systems really promote innovation, then perhaps we should get lawyers to deal with them in their primary business

The reason why you can't have a copyright on these documents is to prevent people from employing rights, laws, agreements where the original law/agreement/contract cannot be reproduced and thus people being at a disadvantage of being unable to access the document to review etc.

Patents are Overvalued

[thaig]

It seems to me that a lot of modern technology has so many ideas in it anyhow that the value of any one of them is pretty small. There are even a lot of sine qua non ideas and each one of these cannot be worth a significant portion of the whole product even if removing it resulted in the product not functioning - because there are so many other ideas which are also critical.

A Libertarian case against IP

[Anonymous Coward]

Absolutely the best commentary on "intellectual property" that I've seen yet. I highly recommend it.

Ideas are cheap

[bradley13]

The reason that process patents are bad: ideas are cheap.

Take any invention, and many people over time will have dreamed of something very like it. Actually working out all the fussy little details, in order to build something practical and workable - that can be difficult. The classic example is Thomas Edison and the incandescent light bulb. "Process: flip a switch, causing electricity to flow through a device that produces light". That's easy. Actually creating such a device is hard.

To take an example from an earlier post above: "Say, someone discovers a way to convert scrap metal to gold. That person should be allowed to have a patent on it". Sure, just as soon as they have the details worked out and proven: Here's a prototype machine that does the conversion. But when they have the details worked out to the point of building a working prototype, it's no longer a process patent, is it?

There's no argument there

[WOOFYGOOFY]

I think it's very important that all arguments for software patents be well voiced and well understood so that we can tease out what exactly is wrong with them and launch an effective rebuttal. Towards that end I actually RFTA, or what there was of it. -1 to whomoever promoted this and voted it into Slashdot. Sorry, but there is no *argument* there to be examined. There is kvetching, there is name calling , there are broad assertions of unproven facts, some bad analogizing all topped off with gross generalizations of the motivations and characters of his opponents. But no argument and no new angle or approach or insight that hasn't been offered and rebutted a million times before. This is an important subject; a real contribution and analysis of the substantive issues presented by either side is Slashdot worthy. That little opinion piece was just drivel .

Broadly worded patents

[badatnicknames]

Part of the problem is that patent lawyers want patents worded as broadly as possible. However for most software ideas are cheap but the devil is in the details.

Re:While patents used to be 14 years...

[LordLucless]

In making your point, you failed to mention that patents were 14 years from 1790–1835.

Which doesn't make the current term "ridiculously long". The OP was obviously getting confused between patents and copyrights.

This applies only in the United States, which you assume we are reside in.

Given that the OP was talking about the changes in US law regarding first to file, yes, that's pretty obviously what I', talking about.

Great point about prior art. In theory it should invalidate bogus patent claims. Please listen to: http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack

Yes, the patent office sucks. However, first to file makes to difference in their suckage. They were ignoring prior art when it was first to invent, and they're ignoring it when it's first to file. They shouldn't be in either case.

irrelevant

[khipu]

Whether prices patents are good or bad really has nothing to do with the Eolas patent. The Eolas patent is simply bad patent. Eolas didn't invent anything, didn't contribute to society, they simply wanted to extort money from lots of people. Thankfully, the courts put a stop to that. Unfortunately, it took way to long.