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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.'"
Drug enforcement agents think the war on drugs is a really good thing.
God spoke to me
"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.
Bugs are good!
-- software engineer paid for maintenance
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?
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.
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
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.
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.
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.
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
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."