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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.
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.
A successful API design takes a mixture of software design and pedagogy.
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.
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.
grape - the GNU free, open source rape
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.
Palm trees and 8
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.
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.
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.
Palm trees and 8
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.
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.
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).
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.
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.
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.
http://xkcd.com/756//
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
I wish I had a good sig, but all the good ones are copyrighted
.....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.
---- Teach Peace. It's Cheaper Than War.
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.
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.
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
I wish I had a good sig, but all the good ones are copyrighted
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).
The world's burning. Moped Jesus spotted on I50. Details at 11.
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.
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.
-- I ignore anonymous replies to my comments and postings.
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.
The world's burning. Moped Jesus spotted on I50. Details at 11.
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.
A Pirate and a Puritan look the same on a balance sheet.