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Federal Patents Judge Thinks Software Patents Are Good
New submitter Drishmung writes "Retired Judge Paul Michel, who served on the Federal Circuit 1988-2010 — the court that opened the floodgates for software patents with a series of permissive decisions during the 1990s — thinks software patents are good. Yes, the patent system is flawed, but that means it should be fixed. Ars Technica have a thoughtful interview with him. Ars' take: 'If you care most about promoting innovation, offering carve-outs from the patent system to certain industries and technologies looks like a pragmatic solution to a serious problem. If you're emotionally invested in the success of patent law as such, then allowing certain industries to opt out looks like an admission of failure and a horrible hack.'"
Bugs are good!
-- software engineer paid for maintenance
If the cost of enforcing the patent equals or exceeds the recoverable benefit, you have just conceded the fact that the benefit no longer carries more than marginal economic value to the alleged beneficiary. The best that could be said here is that it distracts a competitor. The worst (and probably closer to reality) case scenario is that the pursuit of marginally valuable patents creates a perverse incentive that distracts a company from more useful economic activities.
It's really hard to take seriously someone who says they're all about facts and figures, but then jettisons economics because the economic aspects of his preferred system are abysmal. There will come a day, at the rate we are going, where the rule of law will be formally dead in the US similar to how it is in Russia because the legal profession (and judges and prosecutors in particular) have made the cost of participation so high from various factors ranging from failing to sanction frivolous lawsuits and criminal charges, to allowing blatant corruption. As it currently stands, it's on life support.
IANAL but I am a programmer. Judge Paul Michel fails to notice that he is not a software developer, and lacks perspective on the software industry as a whole. Here are four reasons to reject software patents:
Modern computers are general purpose machines - hence BASIC (Beginners ALL-PURPOSE Symbolic Instructional code). All programs are therefore written within the specifications of the hardware designer. This makes ALL software predictable by those versed in programming and not patentable in the first place.
Since all software runs on hardware that only understands the values of 0 and 1, it is all reducible to math. Anyone who has taken a digital logic class can attest to this. What you see on the screen is a representation of that math. Dump the contents of the RAM in binary if you want to prove it to yourself. Math is discovered, and therefore not patentable.
Software patents typically contain no code. The "Inventor" fails to disclose their invention, which should justify the patent being thrown out for lack of documentation. The patent holders, which are increasingly attorneys, are typically unable to actually implement their own patents. This practice discourages innovation.
Software patents typically make no sense to programmers. If a programmer can not understand the patent, then it does not describe a program. On that basis it should be thrown out.
We programmers are sick of being harassed by patent attorneys. They are leeches on our business, and have served to stifle innovation in the industry. It is time to fight back. We should earn triple damages if we successfully defend a suit based on bogus patent claims. For instance, Google should be paid $3 billion by Oracle ($1 billion *3) if they win their case. That would put the trolls back under their bridges.
http://www.ted.com/talks/drew_curtis_how_i_beat_a_patent_troll.html
http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack
That's pretty dangerous ground you're operating on.
I think if you value a society based on the rule of law where every person/industry... is treated equally by law, the existence of patents in other industries should carry over to the software industry. You'd have to prove somehow that software is radically different than the rest of the industries.
The same goes for the other ways in which government operations (safety, quality, national security...). They all extend naturally to new industries.
As to justify itself... well... that's pretty easy to do. Pretty much any law can be justified. It's just a matter of who gets to judge the justification.
For example, I happen to think the startup culture is actually bad for long term scientific progress. It prevents science from being seen as a long term career, so who is going to invest in such a field? I think the period we're in right now is we're 'burning' through the last generation of people brought up in the more traditional company environment. It's one of the reasons most grad students in the sciences in the US are not US citizens. I don't believe it is because US citizens are not smart enough... it is that they rightfully see the field as not one worth such a long term investment. For the talent you have, you might as well be a doctor, nurse, teacher, finance person...
Now that's just my view and not the point of this post... I'm sure people have different views. I'd venture to say most would disagree with me... but what it shows is the amount of discretion in terms of justification. And the more discretion you have, the lower the rule of law is.
Given my experience in industry... there is little that differs from software. People who claim software patents are radically different... are generally people who just haven't seen chemical or hardware patents. They're just as obvious... as anything you'd complain about in the software realm. The only difference I'd say is that the companies involved in those other industries are used to the whole patent and licensing system. Partly because they are always used to charging for their products (they have to... they're made up of physical parts)... so the licensing is easily built into the cost. They're also more mature fields so there's less activity going on.