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

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: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.

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.

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.

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: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.

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: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.