Software Patents Good For Open Source?

schliz writes "The Australian software patent system could be used by open source developers to ensure their inventions remain available to the community, a conference organized by intellectual property authority IP Australia heard this week According to Australian inventor Ric Richardson, whose company came out on top of a multi-million dollar settlement with Microsoft in March, a world without software patents would be 'open slather for anybody who can just go faster than the next person.' Software developer Ben Sturmfels, whose 2010 anti-software-patent petition won the support of open source community members such as Jonathan Oxer, Andrew Tridgell, and software freedom activist Richard Stallman, disagreed."

Comments

Re:Flood the market

[Anonymous Coward]

Fairly sure patent applications cost money, so this point is a bit mute.

Yep, it leaves me speechless.

In theory...

[Junta]

In theory I could see how the argument could work, but in practice, the patent system is both prohibitively expensive and incredibly slow. The cost and delay renders it mostly only usable by big players. Exacerbated by big companies having gigantic, practically unknowable portfolios at their disposal (many companies have a practice of making employees try to patent anything they can think of, regardless of plans to actually implement them, leaving a company with gobs of patents no one even really knows about....

Re:In theory...

[PPH]

And copyrights mess with this in that they protect the actual work and establish the underlying idea as being prior art (from that point on) and thus no longer patentable.

Patents, aside from being slow and expensive, create a kind of virtual property that the big players* can buy, sell, and otherwise securitize. And that game has been fixed for quite a while, making it cost prohibitive for the little guy to do anything more than sell his property into the system to those who can afford to trade it.

* The big players resemble Goldman Sachs more than Boeing or Caterpillar. They don't actually create value anymore so much as trade title to value that is 'within the system'. That is, ideas for which negotiable paper has been generated by the patent office.

Re:In theory...

[rolfwind]

Add in the "First to File" that IIRC the USPTO adopted a while back over the traditional first to invent (a wholly bureacratic self convenience in order to simplify their own lives and no one else who is actually a productive member of society), and I think it's actually a net negative.

Re:In theory...

[Lunix Nutcase]

"First to file" doesn't mean what you think it does. "First to file" is only a system of determining who gets a patent in the situation that multiple people file patents on the same idea. It doesn't invalidate prior art or anything else that already exists in the "first to invent" system.

Re:In theory...

[davester666]

Not only that, but open-source gets to use the 'cheap' route for patents, namely that of "prior art". Code it, push it to github or wherever, and done.

Or is the idea that you want to prevent others from using the technique you used in the code elsewhere [ie, make it kind-of-open-source]? If so, open source really can't match the deep pockets of any of the significant companies that you probably want to sue, and that leaves just the little fish [the 1 - 50 employee firms that, you know, gives most people jobs in the so-called 'West'].

Re:In theory...

[ghostdoc]

The problem, as usual, is not with the technicals, but with the business.

Software Patents solve a business need; that of investors to feel reassured that the thing they're investing in is worth the investment they're making.

An investor usually has no technical chops, so cannot determine if a software startup is doing something clever, innovative or hard-to-replicate. They're buying a stake in some Intellectual Property, and need to know that the property they're buying is 'real'. The first question asked of a software startup is 'what's your protection strategy for your IP?', because if there's no protection there's nothing 'real' that they can invest in. Patents are currently a good answer to this question.

This view is changing, slowly. Lean Startup http://theleanstartup.com/ (amongst others) is beginning to get people used to the concept that execution is more important than ideas, that IP is not a static thing that remains constant and can be owned like a piece of land. A business's IP should be changing the whole time, old ideas and executions discarded behind it as they become irrelevant in a changing market, new executions being constantly tested against the current market.
With this worldview, investors invest in people, not ideas, and the whole patent system becomes irrelevant.

Of course, as long as there's a valid business model for patent trolling then there'll be a set of businesses using that model to make money. But it becomes more and more visibly broken and hopefully we can get the politicians to see that.

Re:In theory...

[Znork]

As most software incorporates many functions, any of which may or may not be patented, patents are a net liability for any startup. Even if they may have one or two, chances are high that their idea cannot be usefully brought to market without infringing on tens to hundreds of other patents.

As an investor I'd worry a lot about any of the owners of any of those patents deciding to end my investment.

It would be possible to build a non-confrontational system that accomplishes what some want the patent system to do, but the monopoly aspect has to go. Something non-damaging like the 'patent office' paying a certain amount for every use of a 'patent' like registration would be much more palatable and create an incentive for all stakeholders to grant only the good 'patents' (as the total funding would be limited and overgranting would mean miniscule payouts).

Re:In theory...

[TheRaven64]

If two people file a patent almost the same time, with first-to-invent, you have a long drawn-out court battle over who invented it. With first-to-file, the second filing will typically include evidence that it was invented before the first disclosure and therefore invalidate the first, so no one gets the patent.

This is as it should be for things that are sufficiently obvious that two people invent them almost simultaneously: remember that the point of patents is not to reward you for being clever, it's to provide an incentive for disclosing your invention. If someone else would disclose it a week later anyway, or all interested people know it already, then there is no reason to provide the incentive.

Re:In theory...

[EzInKy]

If two people invent the same thing at the same time why doesn't the USPTO just consider the thing obvious and not worthy of patent protection?

Re:In theory...

[WOOFYGOOFY]

I't s not the business people driving this, it's the lawyers. The lawyers are acting as a parasitic business on computer programming, siphoning off time and resources which would have otherwise gone into advancing software and money which would have otherwise gone to developers startups and consumers.

If you go to any of these conferences or read op eds and especially blogs you'l see it's lawyers who are attempting to defend software patents, going to conferences and it's lawyers who are employed in the EU and elsewhere by M$ in an attempt to spread the disease.

Lawyers are the prime beneficiaries of these patents, not even inventors who mostly never reach their dreamed of trolling nirvana- a job which entails only cashing checks that come to your mailbox.

Re:Stallman is anti-freedom

[Anonymous Coward]

Stallman may disagree, but he has shown the world how to write a "free" software license GPL3 that's so restrictive nobody in industry wants to use it.

Yes, he may indeed disagree but nothing in the summary (or the links) says whether he does or not.

The rather torturous sentence "Software developer Ben Sturmfels, whose 2010 anti-software-patent petition won the support of open source community members such as Jonathan Oxer, Andrew Tridgell, and software freedom activist Richard Stallman, disagreed." is only saying that Ben Sturmfels disagrees. It says nothing about the views of anyone else mentioned there.

Re:"disagreed" link

[Hope Thelps]

"Jonathan Oxer, Andrew Tridgell, and software freedom activist Richard Stallman, disagreed." *Click link, ctrl-f stallman, oxer, tridgell*, no matches found. Stop wasting my time with links that are inappropriate to the sentence they claim to be linking about.

I think that this bit from the summary:

"Software developer Ben Sturmfels, whose 2010 anti-software-patent petition won the support of open source community members such as Jonathan Oxer, Andrew Tridgell, and software freedom activist Richard Stallman, disagreed"

was trying to say that Ben Sturmfels disagrees, and that back in 2010 Jonathan Oxerm, Andrew Tridgell and Richard Stallman agreed with Ben Sturmfels about something else. A sort of 'appeal to authority by association'.

What is the history?

[jbmartin6]

I am not sure what an 'open slather' is, but it wasn't that long ago in the US that there were NO software patents. Is this what the software market was like back then? Was there more or less innovation compared to now? I am interested if anyone knows of a useful comparison, especially after the ridiculous Microsoft v. Motorola case

The Big Problem with Software Patents is...

[dryriver]

...that large multinationals tend to "Mine the Harbour" when they patent things. What does that mean? It means that Big-Capital dont't patent "One Particular Approach to the Problem". They typically patent THE BEST & MOST EFFICIENT APPROACH TO SOLVING A PARTICULAR PROBLEM + THE 3 - 6 MOST LOGICAL WORKAROUNDS TO THE METHOD. So when you try to find a way around a particular "PATENTED BEST METHOD", you wind up slamming into a minefield of "PATENTED LOGICAL WORKAROUNDS TO THE BEST METHOD", which the patent owner doesn't even put to any use. Those patents are intended to MINE THE HARBOUR, so nobody else's ship can get in or out of the harbour without running into a PATENT MINE. ------ There are often workarounds to even those Patents. But finding them can involve a lot of costly R&D + time consuming TRIAL AND ERROR. And even then, your PATENT-CLEARING WORKAROUND TO PATENTED WORKAROUNDS may be a very unelegant, complex, slow or unreliable method. --------- If it's Hardware you are developing, your hardware may wind up costing 2 - 3 times what Sony, Nokia et cetera pay for their method. If its software you are developing, it may take 18 months instead of 8 months to deliver you software to market. ---------- Either way, "Mining the Harbour" typically causes you to jump through extra R&D hoops, spend extra money, take extra time, deliver to market slow/late, and deliver with a much slimmer potential profit-margin because of your increased cost. -------- Your solution, as a result, may stand no chance of competing with the solutions of the "PATENT-PREDATOR BIG BOYS", and may not be worth delivering to market in the first place. ------ In this case, healthy competition in the market fails, because there is NO GOOD/EFFICIENT ALTERNATIVE APPROACH to what the BIG BOYS have "mined" with pre-emptive patents.

uhh? defensive patents = offensive = good?

[gl4ss]

if you want to ensure it's free - why the fuck just not release it?

just release the damn thing. it's prior art after that.

if you assemble a patent portfolio and assign them to an "open source" company, that company might be bought and the patents used to force forks to die. that's the only thing the patents could be used apart from using them in suits against commercial competitors(just purely offensive or for defensive if getting sued by said commercial competitor).

the business week article in one of the linked articles is dead btw. some guy who netted 300+ mil from having a patent thinks sw patents are good? news?

May Be Better. But Open Still Means Open

[Bob9113]

a world without software patents would be 'open slather for anybody who can just go faster than the next person.'

Well, yes -- that is pretty much the essential nature of "Open." Anyone who has the skill, time, and energy can build whatever they want, even if it is based on someone else's work. It has its ups and downs, but saying the software world would be more Open if it were more restrictive is an internally inconsistent statement. It is logically self-contradictory.

There are those who believe that using the system against itself is better than changing the system. Some believe the GPL is better than would be the elimination of software copyright. I actually fall into this camp (though I do believe in reducing the strength and duration of patent and copyright). But it would not be more Open. Open has some shortcomings, and that may lead a rational person to believe that absolute Open-ness is less efficient than some degree of Closed-ness. But that does not mean you can redefine Open to mean partially Closed. Just say you believe in a balance between Open and Closed. It's OK to believe in shades of gray.

Not every question demands an absolutist answer, but rational discourse does rely on words like Open having a clear and unequivocal meaning in a given context. Dilute your hard-core ideology, not the terminology you use to describe it.

Re:Stallman is anti-freedom

[stephanruby]

Stallman is not mentioned in the article. He's just mentioned in the slashdot description as additional click-bait.

The person we should be talking about is this "inventor" Ric Richardson. This guy patented the free trial/shareware/try and buy concept that required a unique unlock code to activate its software. In 1993, this concept may have been novel (perhaps, thought I doubt it), but the fact that the patent was granted at all is ridiculous.

Since some magazines were already distributing freeware inside of floppy disks with their magazines, it's not much of a stretch to think that it was just a matter of time that a number of those developers would start distributing shareware-like software that required an unlock code to activate it.

And I don't know if this guy got all the money he wanted out of it, since the verdict was overturned so many times over these last twenty years, but this guy's patent is the perfect example of a stupidly obvious idea that's only designed to stifle innovation, not promote it in any way.

Re:Stallman is anti-freedom

[Anonymous Coward]

It's restrictive on purpose and those restrictions are exactly why people in the industry, including myself, use it. The GLP slogan is "Free as in Freedom" for a reason, and its "infectuous" nature is great for preserving that. On top of that it's extremely clever in changing how copyright works - retaining rights to grant different licenses to the actual author/rights holder of the software while effectively nullifying copyright on the base distrobution. That means anybody who wants to use GPL source closed can still be granted a license for it and the authority to grant such a license is in the hands of the actual authors of the source - but otherwise there's no way people can just steal the source like they could under the BSD/MIT/etc. licenses.

The GPL forces freedom and still gives me rights over my code - and that is exactly what I and many other people in the industry want.

The actual arguments

[Hentes]

Here is the point made:

“If a group of open source collaborators can secure a patent, it can choose to grant a royalty-free licence to the open source community to use it just as open source software is licensed,” Bates noted.

“This secures the invention for public use immediately. In other words, it blocks the ability for another party to patent that invention and prevents that other party from exploiting it for commercial gain.

“Secondly, it secures the open source community the right to continue using the patented invention subject to the terms of the patent licence.

“Thirdly, open source patented innovations reside on patent databases and thus form part of the same public record, which makes the public record more comprehensive and useful to the community at large.”

None of these techniques benefit open source, they only try to limit the damage done by software patents, fighting fire with fire.

Re:The actual arguments

[the eric conspiracy]

It also ignores one of the fundamental aspects of patents - that is a patent holder of licensee DOESN'T necessarily have the right to practice his invention because it may merely be an improvement on another invention which is patented by another party.

Definition: A patent is a contract between the inventor and the government in which the government grants the patent owner the right to prevent others from practicing his invention in exchange for a full and public disclosure of the best way to practice the invention.

The entire premise of this proposal is a howler to anyone with any knowledge of patents because the basis for it is a complete misunderstanding of what a patent is.

Not a story

[kegon]

The core of the summary is this:

Patent attorney Michael Bates of 1Place agreed that developers could use the patent system to ensure their inventions remained open source. “If a group of open source collaborators can secure a patent, it can choose to grant a royalty-free licence to the open source community to use it just as open source software is licensed,” Bates noted.

What a joke! Let me guess, Bates wants people to pay him to check patent applications for OSS. Prior art invalidates a patent. Simply publishing or releasing your software open source makes it prior art therefore preventing someone from claiming an "inventive step" - the usual requirement for a patent. Save your money.

Re:Flood the market

[tqk]

Fairly sure patent applications cost money, so this point is a bit mute.

Yep, it leaves me speechless.

Yes, he did mean moot, as in irrelevant. We're not all prefect[sic].

Try to let non-essentials slide. There's a lot of people on this planet whose first langauge is not Anglais. Would you prefer to try out your Polish, Cyrillic, Kanji, Thai, ...?

If you ask me, an "open slather"

[rollingcalf]

... "for anybody who can just go faster than the next person" would be a good thing for software.

Re:If you ask me, an "open slather"

[Anonymous Coward]

There is a word for that in English. What was it? Oh yeah. Competition. That's really bad for incumbent corporations, but good for consumers.

Re:"disagreed" link

[NormalVisual]

A sort of 'appeal to authority by association'.

Or alliteration.

Protect the wealthy

[Anonymous Coward]

All the arguments so far on the benefits of software patents come from the rich.
A man who was award millions of dollars from patents says they are good. Government that makes millions of dollars from patents say they are good!
How does a small , non rich, developer do this, or small open source project get patent protection.
It cost 1000's upon 1000's of dollars just to put in applications. (Not including the legal mumbojumbo and hoops you need to jump through.)
Then when you've blown 80% of your development budget on government fees, the Apple, Oracle or Microsoft types come along and steal your idea anyway, and now you need millions of dollars to fight them in court. (In the mean time they throw their patents at you, ie you used a "software button" or "bouncing icon" etc, so they claim millions of dollars in damages from your $2 company)
Software patent are killing many open source projects and smaller development, limiting innovation in general.
No one can write even the simplest of program without breaching someones so-called patent.
Software should be protected under copyright law, in that the code itself, and the graphics are protected. If someone rewrites software to do exactly the same thing but without using any of the original code then that should be good.
Patents should be only for mechanical physical devices, and even then should only be for a couple of years to give the inventor time to utilise. If they don't then bad luck, its open for all!
In reality small developers have to simply ignore the patent system and hope they aren't targeted by Apple and co if they happen to create something profitable or too popular!

Re:Stallman is anti-freedom

[tqk]

Stallman may disagree, but he has shown the world how to write a "free" software license GPL3 that's so restrictive nobody in industry wants to use it.

Stallman's not a gawd. He has come up with some brilliant ideas. No, I don't agree with him on most things (especially politics), but wrt proprietary protocols, he's bang on! Lawyers and tort law flaws are destroying the US. RMS is the bleeding edge of reform of both. He points the way that you ought to go.

I don't care what he smells like or what he has between his toes. On the things he cares about, usually he's right. He's Arisotelian ("things as they could, and should, be"), which is all I ask of anybody. YMMV, and if so you suck, IMO.

Rock on Richard. Give 'em hell. No, I won't vote for you. I will follow you.

Re:Flood the market

[dmbasso]

Dear humor impaired /.er, you should not use 'sic erat scriptum' when you are not quoting anyone, because there was nothing erat scriptum. Also don't mix languages and scripts. My native language isn't English, but that doesn't mean I have a free pass to commit every possible mistake.

Try to let harmless humorous attempts slide, perhaps you'd even have fun.

This story smells funny...

[WombleGoneBad]

It is as if someone is trying to create the impression there is an ongoing 'debate' about about the pros and cons of software patents. There is no debate. Software patents are harmful nonsense. and this is the general consensus amoung people who write software (supposedly the people that these patents 'protect'). I'm sure you could scrape up some guy who swears blind that smoking cured his sinus problems but that doesn't mean an article 'Smoking - good for your health?' should hit the front page.

Re:Stallman is anti-freedom

[techno-vampire]

This guy patented the free trial/shareware/try and buy concept that required a unique unlock code to activate its software. In 1993, this concept may have been novel...

It wasn't. I can remember trying shareware back in the mid '80s that had limited functionality until you paid for it and entered the code. Sometimes, instead of that, the code unlocked addtional features that the authors hoped were worth the cost.

Re:Flood the market

[Alex Belits]

A bit trollish, but you're probably right.

Look at this and learn. This is how astroturfers' "responses" to themselves look like.

Moralization

[eulernet]

Sure, software patents are good for open source, like HIV is good for fidelity.

What sickens me is that people still try to sell their poor ideas with moralization.
Using categories like "good/bad" or "nice/evil" is the typical way it's used.
This way, if you disagree with my opinion, you are "bad/evil", while I'm "nice/good".

BTW, I think that software patents are a huge waste, both of time and money.
All this energy is spent on trying to defend ideas, but ideas are unlimited and patents are limited.
Instead of trying to protect your ideas, try to find new ideas !

Better title: Software patents bad for Australians

[sturmy]

I (Ben Sturmfels) am saying is that software patents are bad for the whole software industry and the Australian public. Software patents inhibit innovation for *both* proprietary software and free software/open source businesses. Getting rid of software patents is something the entire software industry should be working towards.

Re:Missing freedom

[jedidiah]

> This is not an infringement to freedom of thought

Sure it is. You can't use the labors of your own mind because some jackass got a bad patent on something any CIS student could come up with. Bad patents are THEFT. They are theft from you and from me (assuming you are a CS professional).

Software patents allow Apple and friends to claim ownership of things I have created. This isn't just some theoretical idea or academic idea. Someone like Apple or Amazon can sue me for re-implementing some blatantly obvious thing.

THAT is the very real problem with patents generally and software patents in particular.

Trivial shit is patented granting "exclusive ownership" to whatever lucky company was granted that patent. That means that NO ONE ELSE can recreate it. Doesn't matter if it is trivial shit that 10 companies are re-inventing at the same time.

1 company can get a patent, sue the other 9 and create massive chaos and stagnation in the industry.

Re:Missing freedom

[jedidiah]

Patents aren't supposed to cover ideas but they really do in practice because if you try to re-create a particular sort of device it is up to you to try and convince the clueless trial court that your fundementally difference device is not a patent violation. I believe that companies have already been bit by this very thing with regards to Tivo workalikes. They tried to design around the patents but got declared "in violation" anyways.

Patents aren't supposed to cover "ideas" but they do in practice.

That is part of why patents should be considered toxic waste and not candy. Every patent stifles innnovation. Every one. The question is whether or not the relevant trade secrets are worth the tradeoff.

This mindless "everything is intellectual property" nonsense is very destructive. It leads to the default view being "it can be owned" and "it should be owned'. The opposite is really true.

GNU software is free, not people

[bill_mcgonigle]

Stallman may disagree, but he has shown the world how to write a "free" software license GPL3 that's so restrictive nobody in industry wants to use it.

You misunderstand the purpose of the GPL (and I did too until recently). GPL exists to make the software free. Something like BSD is meant to make the people free. Different licenses for different purposes.

Fuck no - stop the spread of the disease

[dbIII]

Keep the software patent disease contained within the USA and preferably eliminate it there at some point. The only advantage software patents give over normal copyright is as an extra weapon for those with large legal departments against those that don't. That skews the playing field towards those that are already well established and stifles innovation - which is exactly the opposite of what patents are supposed to do.

Re:Flood the market

[dmbasso]

:)
This reminded me of when a dog is looking for his toy and you point in its direction, and the dog keeps looking at your finger. I better go sleep.

We use lots of Latin expressions because they are useful, have a very strict meaning, and have a usual form. I don't think I've ever read the full "sic erat scriptum", neither "exempli gratia", nor "id est"... et cetera (this is the only one that I remember having read in full). But "so" doesn't make sense alone, it is there to say "and so it was written". Meaning there was something that erat scriptum.

Sic sorry to disappoint you, but "[sic]" is to be used only when quoting, as both definitions you pasted explicitly said.

Re:Flood the market

[DarwinSurvivor]

Quick patent every silly software idea you have so the big corps cant!

How's that supposed to happen when most is clone of software that already exists?

FTFY.

Betteridge's Law of Headlines

[ABoerma]

"Any headline which ends in a question mark can be answered by the word 'no'"

Open Source will supercede the Patent Office

[dweller_below]

We just need to be patient, and keep publishing good code.

It takes decades to teach Government new tricks. At this point, it is barely aware that software exists. But, it is learning. It just takes time and lots of informed input.

Judge Alsup (the current judge in Oracle vs Google) is an example for our future. Once Government is seeded with individuals that understand software, we will finally see changes that make sense.

It is inevitable that eventually the Patent Office will acknowledge Free and Open Source Software (FOSS) as a partner. Both have the same general objective: To Advance Art and Science. Patents are an ancient tool. Patents are a poor tool for software. Patents are optimised for the physical world. FOSS is a modern tool that is optimised to properly handle societies need to advance the art and science of Software.

In the field of software, FOSS is a superior solution. FOSS provides all the goals of patents without the enormous costs of patents. FOSS provides: Publication; Implementation; and Motivation. FOSS creates stable and enduring infrastructure. All cheap and self organising. And without a crippling burden on the legal system.

The end-game is certain. Eventually Patents will not constrain FOSS. Probably we will see a statement along the lines of: FOSS has an automatic license to all patents. Therefore FOSS can not be sued for patent infringement. The only bit of uncertainty is the time-frame. It could be decades. It could be centuries.

The future for proprietary software is less simple. Proprietary software appears to be in need of patents. Proprietary software doesn't Publish. Society can't inspect Proprietary implementations. Society can't learn from and extend Proprietary software. And, any Proprietary software infrastructure can vanish in the blink of a vendor's eye. There are good reasons to keep Proprietary Software shackled to the Patent Office.

Miles

Re:Flood the market

[Njovich]

You are the one mangling the Latin language, assuming 'sic erat scriptum' when just 'sic' was written. Sic by itself is a perfectly valid Latin word (at least as I recall it from my years of classes).

His joke may not be good, but it's still entirely reasonable to say 'sic', to say he really meant it that way, even when it is a little bit unusual.

Even wikipedia writes about its use in newly generated text:
http://en.wikipedia.org/wiki/Sic#In_newly_generated_text

Re:Flood the market

[turbidostato]

"The purpose of a patent is to protect the idea from being stolen"

No, it is not.

Currently, patents are widly used to protect the idea. That's neither the intent nor the purpose of patents. Patents' purpose is to protect a given practical implementation of an idea, making at the same time the idea by means of its practical implementation, well, patent (as in publicly reacheable just going to the patent office and reading the patent description) to anybody.

Oh! and, by the way, ideas can't be stolen, they are shared.

Re:Flood the market

[jep305]

...and yet another Slashdot conversation goes straight into the tank because of the grammar police.

Re:Stallman is anti-freedom

[techno-vampire]

No. Most shareware just asked you to pay for it if you liked it.