Federal Patents Judge Thinks Software Patents Are Good

In other news by GoodNewsJimDotCom · 2012-05-13 22:28 · Score: 4, Insightful

Drug enforcement agents think the war on drugs is a really good thing.

Re:In other news by Anonymous Coward · 2012-05-13 23:05 · Score: 5, Informative

Slashdot headline: "Federal Patents Judge Thinks Software Patents Are Good"
Ars headline: "Top judge: ditching software patents a "bad solution"
If you bother to read the article, he says that simply throwing out the patent system is not a good idea. He also says that software patents are rife with garbage which needs cleaned out, and that the entire system from top to bottom needs to be overhauled.
But I guess it's easier to post a knee-jerk response and get a +5 Insightful than it is to read the article.
Re:In other news by jedidiah · 2012-05-14 02:15 · Score: 3, Insightful

You make it sound like we've always had software patents.
This isn't about "software being special". This is about new forms of patent being created essentially out of thin air and contrary to previously adjudicated precedents.
Patents exist to serve a public policy objective. If they are harmful, then they need to go. The system does not have an inherent justification. It has no right to exist. You don't have a natural right to a patent.
The "null hypothesis" here is that NO patents deserve to exist. Any class of patents needs to justify itself or be abolished.
Software patents are a recent invention. It is THAT change to the status quo that needs to be justified.

--
A Pirate and a Puritan look the same on a balance sheet.
Re:In other news by jmactacular · 2012-05-14 03:40 · Score: 3, Insightful

Well, he doesn't have power any longer, he's retired.
It sounds like he isn't familiar with, or just doesn't care about, how bad it has become. His view must be limited to his world of the courtroom, instead of everyone else out in the real world being extorted and/or shut down, stifling innovation before it even makes it into the courtroom.
But mostly, it sounds like he's trying to save face for a flawed system, because he's so invested in it, rather than being interested in solving the problem. Perhaps even deluding himself into thinking his legacy, his life, had meaning, for all the years of what he did on the bench were good, instead of really just perpetuating the problem.
Re:In other news by scamper_22 · 2012-05-14 03:52 · Score: 4, Interesting

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.
Re:In other news by sir-gold · 2012-05-14 05:54 · Score: 3, Interesting

From my understanding of software patents vs. real mechanical patents: a software patent allows you to patent the concept of an action, rather than the action itself. Lets use the standard example of the cotton gin. If the machine had been covered under a software patent you would be able to patent the entire IDEA of ginning cotton (a device that inputs raw user cotton plants and outputs refined cotton) and not just the particular method of getting that refined cotton (which is what was really patented, all those years ago)
with physical patent, if a machine is already patented, you are still free to build a machine that does the same task, as long as its a different method. but with software you can't do that because there is usually only one possible method.
Also, software ends up covered by 2 separate IP laws, patent AND copyright, unlike physical machines which can't be copyrighted
What's next, are they going to argue that books and movies need patent protection too?

Emotionally invested by Anonymous Coward · 2012-05-13 22:29 · Score: 5, Insightful

"If you're emotionally invested in the success of patent law as such" - that's the problem. You should never be emotionally invested in a cedrtain law. You may be emotionally invested in a goal and thus support a law which you think helps with that goal (and revise that support if it turns out that the law doesn't help with that goal). However as soon as you are emotionally invested with the law as such, you are not any more objective about it.

Emotionally invested in what exactly? by Alranor · 2012-05-13 22:34 · Score: 3, Insightful

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.'"

Isn't that the actual, official, reason for having patent laws and protections in the first place?

Surely being 'emotionally invested in the success of patent law' would require you to want it to achieve what it was meant to achieve?

Re:Emotionally invested in what exactly? by chrb · 2012-05-13 23:10 · Score: 5, Insightful

Surely being 'emotionally invested in the success of patent law' would require you to want it to achieve what it was meant to achieve?
Michel's argument is a familiar and persuasive one - if there are problems with the patent system, then those problems should be fixed, rather than exempting entire industries from its scope. Some might claim that it is an argument based on ideology rather than pragmatism, but that does not make it invalid. Why should electrical engineers be vulnerable to patent trolls, whilst software engineers aren't? Why should a program expressed in VHDL and uploaded to an FPGA be worthy of patent protection, whilst the same algorithm implemented in C and running on a CPU isn't? Why should engineers in every industry have to worry about patents, but software engineers be excused? There is the argument that software is just an expression of mathematical functions, which as an abstract concept is unpatentable. But isn't a CPU design also an expression of mathematical functions, that just happen to implement logic gates and other circuits?
The pragmatic difference is that the barrier to entry for software programming is much, much lower. When a person can violate your patents with nothing more than a PC and a compiler, then there are potentially tens of thousands of people who will end up doing so. But the actual result is no different to that of other industries - the PC is to software what Star Trek 3D replicators would be to hardware - if we actually had 3D replicator technology, then people working in every industry would be living under the threat of patent trolls, and many of them would be calling for their industry to be exempted. So, why should software be treated as a special case?
Re:Emotionally invested in what exactly? by geoskd · 2012-05-13 23:16 · Score: 4, Insightful

Why should a program expressed in VHDL and uploaded to an FPGA be worthy of patent protection, whilst the same algorithm implemented in C and running on a CPU isn't? Why should engineers in every industry have to worry about patents, but software engineers be excused?
The right answer is: neither engineer needs patent protection to make viable, marketable products, and thus neither should have it.
-=Geoskd

--
I wish I had a good sig, but all the good ones are copyrighted
Re:Emotionally invested in what exactly? by Savage-Rabbit · 2012-05-14 00:14 · Score: 3, Insightful

Why should a program expressed in VHDL and uploaded to an FPGA be worthy of patent protection, whilst the same algorithm implemented in C and running on a CPU isn't? Why should engineers in every industry have to worry about patents, but software engineers be excused?
The right answer is: neither engineer needs patent protection to make viable, marketable products, and thus neither should have it.
Ok, the patent system is broken. Let's fix that by abolishing the patent system! That will allow us to move on to the more onerous problem of fixing the problem of business monopolies by abolishing trade! And come to think of it police officers sometimes abuse their power, let's fix that by disbanding the police force! Or... perhaps, we should just fix what's wrong with these things? The engineer may not need patents to make viable marketable products but they sure help you to recoup the investment in time and money you made while developing and perfecting your invention. I agree with most of what the anti patent people are saying, the patent system is broken, but shooting the dog in not necessarily the best way to stop it from barking.

--
Only to idiots, are orders laws.
-- Henning von Tresckow
Re:Emotionally invested in what exactly? by jedidiah · 2012-05-14 02:20 · Score: 4, Insightful

The patent system is not meant to "protect innovators".
This is a bad bit of pro-corporate rhetoric that sends everyone down a philosophical dead end. Patents exist to encourage disclosure of useful inventions so that everyone can use them.
If something can be easily replicated by 10 companies in parallel, then the value of disclosing that information is miniscule. The harm caused by not allowing 9 out of 10 companies to independently move forward gravely outweighs the value of allowing the 10th company to claim ownership on something.
The basic idea of what the patent system should be and how individual patents should be treated is wrong. If judges are perpetrating those fundementally wrongful ideas then perhaps the whole system needs to be scrapped.
Sometimes, the patient can't be saved.

--
A Pirate and a Puritan look the same on a balance sheet.

Exactly by Kupfernigk · 2012-05-13 22:52 · Score: 3, Insightful

I think, given the number of lawyers involved and the kind of income they can make from corporates, that for "emotionally invested" read "benefiting financially". There are a few judges who, once they have a permanent appointment, suddenly start telling litigants to grow up and keep the courts out of it, but the majority are looking over their shoulders at their former colleagues and their children.

--
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."

Re:Exactly by demonlapin · 2012-05-13 23:57 · Score: 3, Insightful

It's probably much more emotional than financial. The small percentage of lawyers who are really successful are unlikely to give up very lucrative practice to become judges. But every judge has the experience of being a lawyer before he's a judge, and will tend to bias decisions in such a way as to protect the prerogatives of the legal profession above all others. (There's even a whole book about this, though I've not read it.)
Re:Exactly by CastrTroy · 2012-05-14 00:57 · Score: 3, Interesting

While I think that there are many lawyers profiting from software patents, I'm not sure that any corporation (except law firms, which are usually not corporations, usually limited liability partnerships) would claim to be "benefiting financially" from the current state of software patents. Perhaps a couple patent troll "corporations", but nobody who is seriously involved in the development of software products can claim that software patents are a good thing. At the end of the day, all the legal services they have to pay for to defend and file their patents are just a really big cost center. It stifles innovation, and it stifles change to have all these patents floating around. I'm not really against software patents in principle, but in practice, they just don't work. It doesn't seem that there is enough expertise in the patent office to ensure that bad ones don't slip through (although the same could probably be said for most patentable things, since all the really simple stuff has been patented, and the only stuff left to patent is quite obtuse stuff, which, although it may already be in use in standard industry, I doubt many patent clerks would be able to determine if something was truly novel, without spending a lifetime in the field). Some major changes would have to be made to the patent system for software patents to work at all. Probably better to just drop them all together until we find a model for patenting software that actually makes sense.

--

Anthropic principle: We see the universe the way it is because if it were different we would not be here to see it.
Re:Exactly by Grond · 2012-05-14 05:14 · Score: 4, Informative

nobody who is seriously involved in the development of software products can claim that software patents are a good thing
Would you consider Steve Jobs "seriously involved in the development of software products?" When he announced the original iPhone, he noted "and boy have we patented it." It's right there in the presentation as a bullet point, alongside "works like magic" and "no stylus." Later he pointed out that "We filed for over 200 patents for all the inventions in iPhone and we intend to protect them."

Central planners love central planning. by trout007 · 2012-05-13 22:54 · Score: 3, Insightful

Is this a suprise to anyone? Central planners always have an excuse for their failures and always insist they just need some reforms and tweaks to get it right. They insist the problem isn't that central planning cannot work it is just some little switch or dial needs adjusting. The fact is Central planning can never work. Free people following having the liberty to do what they want with their time and property will always work better. It won't always be successful but that is the point. The failures will simply run out of their own money. The central planners get to take everyone's money to keep funding their failures.

--
I love Jesus, except for his foreign policy.

Re:Central planners love central planning. by ThunderBird89 · 2012-05-14 00:37 · Score: 3, Interesting

What is happening in China is because of central planning, you say?
No, not exactly. Let me clarify what I mean.
Yes, what is happening now is mainly due to "the west taking advantage of cheap labor rates", as you put it. However, in order to get here, to be an attractive place for investment, China needed to beef up its infrastructure and production capability. Otherwise, western companies would have looked elsewhere to invest, where they didn't need to pay for laying down the infrastructure needed to support their fabbers (let's talk mainly electronics for now), such as massive power grids and road networks. These were built because the Chinese government said so, and their word is law. If they hadn't, there would have been a vicious circle: investors pass over the area because there's no infrastructure and building it up would be too costly, while no infrastructure is built because there's no need in the first place, since no investors want to invest.
Heavy industry was built up for a similar reason, although that started back in the Soviet era, in order to supply the rest of the Soviet bloc with the building material they needed. Now it was 're-purposed' to lower the initial investment cost by supplying nearly-free building materials to build factories, foreign or domestic.
Let me draw a parallel: IPv6. No/few routers support it, because there's no demand for it, and there's no demand for it, because ISP-s don't offer it. Why don't they offer it? Because there are no routers with built-in support, since there's no demand for it. Vicious circle of no demand-no support.
So yes, in a way, you are right, what is happening now is due to the west. But the root of the situation does lie in the effects of central planning, going way, way back.

--
Hyperbole: I use it liberally!

Re:Bugs are good by xonicx · 2012-05-13 23:06 · Score: 5, Interesting

Bugs are good!
-- software engineer paid for maintenance

Software Patents have a couple of problems by chrismcb · 2012-05-13 23:12 · Score: 4, Insightful

Software patents have two main problems.
The biggest problem is, generally they aren't novel enough. Too many can be conceived by a general practioner of the art. And claiming XYZ can now be done on the internet, or on an IPad, or on 'fancy new device' doesn't make it novel enough.
The other problem is ideas can't be patented. Yet that seems to be what most patents are. They won't show the code, so how do you know if you are infringing on the patent? There are multiple ways to solve a problem. Just because I got to the same end point doesn't mean I infringed on the patent.

Re:Software Patents have a couple of problems by gl4ss · 2012-05-13 23:48 · Score: 4, Informative

The other problem is ideas can't be patented.
Hmm, I've always thought that this was exactly the point of patents. So once you have them in laws, ideas can, in fact, be patented.
no, point of patents was to get protection on a specific way to implement a technical solution, for example to create an internal combustion engine you'd use valves and a cylinder and some way to deliver fuel/air mixture into it, have it attached to a set of wheels in specific way that's doable. you wouldn't grant and uphold a patent on something as "4 wheels and a motor" which is on some level a mere idea, but not a technical solution at all.
a quick fix would be that in order to get the patent you would need to submit a device and it's plans, including the software that makes it tick, to the patent office. that way you couldn't patent a perpetual motion machine without building one and showing how it works - which would be the point. that would protect your porridge boiler from 1:1 chinese copies but not from a ceramic pot. you also shouldn't be able to patent a chemical substance(which seems also to be a recurring thing for people to try), but you could patent the most viable technical solution for making said substance..
and supreme court definitely isn't the solution, no amount of hard work from them is going to fix it really when it's broken at the other end, the cases shouldn't even hit them - they're not supposed to be the guys who figure out what the law should be really.

--
world was created 5 seconds before this post as it is.

IBM and patents by Anonymous Coward · 2012-05-13 23:29 · Score: 4, Insightful

Lets take a look, machine translation is done by companies like Google and Word-lens. They are the ones inventing and making products. However if you look at the patents, this is typical:

2009: "U.S. Patent # 7,610,187 - Lingual translation of syndicated content feeds ", a typical IBM patent.

Now the patent isn't enabling the invention here, IBM has just done the typical thing, looked at what people are doing and patented around it. This isn't to create things of value because IBM don't make translation software, they make patents. It's about using the weakness of the patent system to make money from companies that *are* inventing things. It adds an overhead to those companies, an extra cost in their R&D budget.

So much for being a "facts and figures man" by MikeRT · 2012-05-13 23:42 · Score: 5, Interesting

We pressed him on this. Michel conceded the problem was less that it was too anecdotal and more that he disagreed with the book's premise—that high litigation costs were a sign the patent system wasn't working.

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.

Software patents should probably not be scrapped by sproketboy · 2012-05-14 00:13 · Score: 3, Interesting

But their duration should be shortened to 2 years to account for time to manufacture. The patent system was developed for physical devices which historically could take years to manufacture. Software is out the door in 6 months.

Opt Out? It's illegal to grant patents on math! by Kirth · 2012-05-14 00:49 · Score: 3, Interesting

I don't see anything to justify "software patents" in the first place, and actually, patent law forbids it. Everyones.

Just because some idiot lawyers redefined "software" as not being "math", because they couldn't grasp the math isn't enough reason to not ditch illegally granted patents.

There is nothing to "opt out"; the situation with these illegally granted patent just needs to be resolved.

--
"The more prohibitions there are, The poorer the people will be" -- Lao Tse

Why software is different by mattr · 2012-05-14 01:54 · Score: 3, Informative

The software industry is indeed different.

There is a reason why people say an Internet technology year is like 7 years in another industry.

If patents are intended to protect inventors while commercializing their inventions, then current patent policy is a grevious failure and harm to inventors, and must be scrapped or greatly reformed.

Following are some key points:

- Huge number of obvious patents

- Large companies forced to buy tens of billions of dollars in patents as insurance against mutually assured destruction. This warfare means a single inexperienced jury can greatly impact trillion dollar multinational business strategies and a great segment of the global population, while making further invention exponentially risky.

- Smaller companies are unable to defend themselves in this warfare. They are periodically destroyed by large companies wielding patent weapons.

- U.S. inventors are put at a disadvantage by patents / legislation due to the immediate nature of software / Internet / speed of development overseas

- Mathematical nature of software languages and code

- Cooperative nature of software repositories, libraries, class hierarchies and APIs

- Revolution of the software industry, as a simultaneously cottage industry and international in nature

- The nature of software and the Internet means code can be transparently executed on servers in other jurisdictions.

- Legislation is both hidebound, slow and naive while having a permanent and disproportionately large impact on the software industry. A quickly reacting and quickly editable legal board is probably necessary if laws on software are to continue realistically.

As other industries become more and more dependent on software, they too will become more endangered by software patents, and by Internet-style information technology based disruptions. As it currently stands, individuals are at a severe
disadvantage in patent wars and on a global stage due to the USPTO's spamming of software patents with a total lack of responsibility for the massive losses in time and money required to justly determine the patents' validity after the development of critical infrastructure using them.

Judge Misses the Boat by Anonymous Coward · 2012-05-14 03:31 · Score: 4, Interesting

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

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Federal Patents Judge Thinks Software Patents Are Good

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