Apple-Motorola Judge Questions Need For Software Patents

imamac sends this quote from a Reuters report: "The U.S. judge who tossed out one of the biggest court cases in Apple's smartphone technology battle is questioning whether patents should cover software or most other industries at all. ... Posner said some industries, like pharmaceuticals, had a better claim to intellectual property protection because of the enormous investment it takes to create a successful drug. Advances in software and other industries cost much less, he said, and the companies benefit tremendously from being first in the market with gadgets — a benefit they would still get if there were no software patents. 'It's not clear that we really need patents in most industries,' he said. Also, devices like smartphones have thousands of component features, and they all receive legal protection. 'You just have this proliferation of patents,' Posner said. 'It's a problem.' ... The Apple/Motorola case did not land in front of Posner by accident. He volunteered to oversee it."

Comments

Oblig: TED Talk

[scorp1us]

Johanna Blakley's TED talk

Re:Oblig: TED Talk

[codewarren]

You are ignoring the counter argument that it was patents which allowed the US companies to create medications in the first place. Medications that are cheap today now that patents have expired, only existed because the US made it profitable for companies to develop them in the first place.

(I'm not saying this is definitely true, just that you've acted as if the argument doesn't exist and "making drugs cheap" is an obvious solution)

Re:Oblig: TED Talk

[CanHasDIY]

What's your proposal for funding drug research?

Funded via NIH and public universities... in other words, exactly the way we fund it now.

The difference would be, the public (who already pays for the research) would be the direct beneficiaries of the research, instead of pharmaceutical companies getting to claim a monopoly on what should, by all law and rights, be public domain.

Re:Oblig: TED Talk

[TheGratefulNet]

pharma is TOO IMPORTANT to be left to money-grubbing capitalists. its like infrastructure, it should be maintained by the gov who will be a little less of a pain-in-the-ass than the pharma companies.

we have the gov do things that we rely on for common good. pharma should be one of them.

the idea of profiting from others' pain is so WRONG, I can't even get my head around why we allow such evil practices.

at some point, we should think about how we can convert this 'business' back into the charity and caring set of goals it was SUPPOSED to be in the first place.

a lot of things should have profit taken out of it.

profit is evil. more and more, I'm seeing how our 'money, at all cost!' civ is just entirely designed wrong.

"sorry, you have to suffer. our prices are more important than your pain relief"

unbelievable. I wish there was a hell; so that the pharma (and similar) ceo's could go to 'retire' when they die.

Re:Oblig: TED Talk

[Impy the Impiuos Imp]

This is exactly right.

The choice isn't between new expensive medicines and new cheap medicines.

It's between new expensive medicines and no new medicines at all.

If you slow technological development by eviscerating the profit motive (imagine the idiocy of applying it to computers, smart phones, and Internet tech 20 years ago), with medicine, people die who otherwise wouldn't.

20 or 50 years go by, and the tech lags further and further behind where it otherwise would be. This causes increased numbers of deaths who wouldn't otherwise die, like compounding interest.

Had the US been like Europe the past 70 years (and I'm not talking just medicine, but general business unfriendliness) then would the US's production (half of all new medicines) been like Europe's instead?

And you'd stand here in 2012. Happy with your 1980-level "free" medical tech?

If your ears burn over this, they should. You could already be killing people like a major war does. Had Europe spit out medicine like the US does during this time, maybe we'd have 2025 or 2035-level medical tech, and more lives would be saved by the millions each year.

You just can't shove these hypothetically saved lives in front of a camera, the way you can with lives lost due to an expensive medicine. But there's no comparison in the numbers, it's not even close.

Re:Oblig: TED Talk

[Shompol]

The same pharma companies that spend over 50% of budget on marketing and advertising? Don't you think it is a little wasteful?
PS: No, I don't need to provide a link, google it.

Re:Oblig: TED Talk

[cdecoro]

the idea of profiting from others' pain is so WRONG, I can't even get my head around why we allow such evil practices

Profit from other people's pain? The pharmaceutical companies that make the drugs I take every day, Merck and Pfizer, are profiting from RELIEVING my once-substantial, and now nearly non-existant pain. I am thankful every day that we have companies committed to such "evil" practices.

Re:Oblig: TED Talk

[PopeRatzo]

You're under the impression that the private pharmaceuticals do nothing by way of funding the drug discovery process?

Pretty much. The heavy lifting is done for them and the research they do is heavily subsidized by taxpayers.

And, their research is entirely in high-profit drugs that may or may not be important for human health.

Also, look at how often they get it wrong. Huge money spent researching a non-steroidal anti-inflammatory that is less effective than Ibuprofen (whose patent has expired) and happens to give you a heart attack.

I should disclose here that I am alive today pretty much only because I was involved in a drug trial in the 1990s due to a nasty type of lymphoma. I'm completely better, no recurrence in almost 16 years now. I really tried to find out the provenance behind the drug I was given: almost entirely funded publicly, and my care was given at a non-profit hospital.

I was born during a time when almost all medical care was done on a non-profit basis. People got paid, but you do get to be paid in a non-profit setting. Doctors lived really nice, upper-middle class lives. Best house on the block and that sort of thing. It all went haywire when the profit motive took over everything in medicine.

Oh, and the increase in life expectancy that has occurred during my lifetime happened mostly before the for-profits took over.

Re:Oblig: TED Talk

[ZeroSumHappiness]

It's not necessarily wasteful if it grows the budget by more than it costs.

For example, let's say I have a small company and my non-marketing costs are $10k a year (example numbers here.) Furthermore, let's say it'll cost me that $10k a year no matter whether I sell nothing or sell 100 units. (Actual pill-by-pill production is cheap. Setting up the factory is expensive. Getting a drug approved is expensive. Finding a drug to get approved is expensive.)

If I spend $2k in marketing maybe I can sell $8k in product, providing the drug to 80 people a year. Okay, sure, not terrible.
Maybe if I spend $4k in marketing I sell $10k in product, providing for 100 people.
Maybe if I spend $10k I sell $20k in product, proving for 200 people.

Is that $10k in marketing "a waste"? Well, if I spent half as much I'd make less profit. If I spent half as much I'd help fewer people. If I spent half as much I'd have less profit to put into creating new drug lines.

I understand where you're coming from, the idea that marketing is a drain on the economy since it produces nothing, but for an individual company it could be the difference between new drugs being developed or the company going bust.

I think what you're actually proposing is a pure collectivization of drug discovery. The problem I see with that is how do we then ensure we culture the right drugs? Drug discovery is hard. Immensely hard. Failures are often and expensive and government is poorly equipped to make entrepreneurial decisions. That's why we currently rely on private companies to make the decisions on who is a good research and who is a bad researcher when a company in total only makes two or three really profitable drugs every decade. We can allow those companies to fail if they can no longer produce. It's a lot harder to let a government program "fail" like that.

Re:Oblig: TED Talk

[ozmanjusri]

It's not necessarily wasteful if it grows the budget by more than it costs.

For healthcare, yes it is.

Think about it.

Re:Oblig: TED Talk

[Dr_Barnowl]

What if they could make a pill that cured the source of your pain, relieving you of both your pain AND your financial burden to pay them?

Do you think they would?

Or do you think they'd quietly keep supplying you your painkiller for 17 years, until the patent expired, and then try and sell you a new one developed solely because they can't make the same margin on the old one, now that any chemist worth a damn can legally make it for a few cents per pill?

Re:Oblig: TED Talk

[mjm1231]

Seriously? I heard of cholesterol as a health problem long before Lipitor existed, and before direct to consumer drug advertising was even a thing.

If you are relying on advertising for your information about the world, I don't like your prospects for health and well being in any case.

Re:Oblig: TED Talk

[RogerWilco]

I don't agree that in general Europe is business unfriendly. The US has two other major advantages over Europe, namely a large common market and a head start after WWII.

EU-27 has a bigger economy and more Fortune 500 companies than the US.

Europe certainly has problems for business, but those are mostly the fact that there are many languages, currencies and different laws to deal with, not that the climate is inherently business unfriendly. Some countries might be somewhat more unfriendly towards US companies than their own, but that's mutual.

And we manage this wile providing universal health care, guaranteed pensions, social welfare, more holidays and shorter working hours.

Re:Oblig: TED Talk

[FictionPimp]

I never see cures advertised. Only maintenance drugs. I hope I'm wrong, but it seems like drug companies don't want cures, they want dugs that mask symptoms that you need to take for the rest of your life.

Is it better to cure aids or to let someone live on a daily pill with aids?

Re:Oblig: TED Talk

[Nadaka]

You don't understand.

There are a fixed number of people who need a drug for their health problems.

Giving a drug to someone who does not need it is malpractice.

Advertising drugs does not really increase your legally and ethically available customer base.

Re:Oblig: TED Talk

[Applekid]

If I never hear about Lipitor maybe I never bother getting a cholesterol screening and then die of heart disease at 37 instead of going to my doctor at 35 and saying, "Hey, I heard about this Lipitor thing and that men from age 35 should have cholesterol screenings."

One should go to the doctor yearly. This is a healthy habit, right up there with brushing your teeth and exercise and cooking food thoroughly.

The only point of marketing to the mass public is to make them think they want something. They want someone who's feeling a little down today see a commercial for an anti-depressant and say "hey, *I* am feeling down, maybe I'm clinically depressed, clearly I need this pill." They should only be marketing to doctors, and even then it shouldn't be by giving away swag and lunches to a doctor and their staff, it should be a just-the-facts operation. This medication treats xyz better than this other one, just look at these reduced side effects.

What I'm getting at is that you're doctor should already be running the blood work and should be bringing up your cholesterol levels up to you. That's why they're licensed: they are acting as your agents regarding health.

That's why sensible countries prohibit the drug industry from advertising.

Re:Oblig: TED Talk

[cdecoro]

AC is absolutely right. Of course someone would make that pill, because it would completely wipe out all their competitors' market share, assuming that the price of that pill was less than the present value (including inconvenience) of taking the other pills over the length of the patent term.

And I'm not forced to buy their new pills; their old (no-longer-patented) ones work just fine for me. But they don't work well enough for some people, whereas the new ones may. So I'm quite happy to have given them their monopoly-inflated price (about $100/month) for the 3 years I was on it until the patent expired, because they've turned that around into making new drugs that help other people. More importantly, I appreciate that they've given me my life back, and hope for the future. For that, $100/month was a bargain.

Now, I don't deny that there can be problems where companies, or individuals therein, take actions that are fraudulent, exploitative or otherwise unethical. So of course, there should be some level of government oversight. But profit is exactly what motivates these companies to make new drugs. If a disease only affects a small number of people (as opposed to, perhaps, a wide-spread pandemic), governments don't have much motivation to produce drugs.

Suppose that you were a politician proposing to spend billions of dollars towards developing a drug for, let's say, those with schizophrenia, which are less than half a percent of the population. The drug may never pan out. And your opponent says that we should just throw those psychos in institutions, if not in prison (because we all know that that's really what they "deserve," and that their illness is just an "excuse") and spend that money on decent people instead. Which do you think would be more popular, and thus more likely to be implemented by a government? (Hint: one of these is exactly what has been done by governments for most of human history, and the other has never been done, at least on any large scale).

Re:Oblig: TED Talk

[Ironhandx]

Whatever you may think, government is the only large organization that is even a little bit likely to do things for the common good.

Everything else is profit at all costs. The idea that the "Free Market" or some other voodoo can sort it out is a bullshit story told by the same people with a shitload of money who benefit more from less government to protect the people they are exploiting.

Re:Oblig: TED Talk

[nedlohs]

Jonas Salk refused to patent his polio vaccine

And yet he patented Remune.

And of course his "refusal" to patent his polio vaccine had nothing to do with the lawyers at the National Foundation for Infantile Paralysis saying that prior art made it not patentable - they did the legal research into that just for fun with no intention of actually patenting it if it was likely to succeed.

Re:Oblig: TED Talk

[drunken_boxer777]

I see this objection a lot. As someone with quite a bit of knowledge about the pharmaceutical industry, medicine, and basic research in biology, let me try to explain the problem: creating a cure is insanely difficult. Why?
      1. It usually requires permanently altering cellular anatomy or physiology/metabolism, and homeostasis won't let you.
      2. Many diseases have genetic components, which would require altering DNA to cure.
      3. We don't have the technology to carry out #1 and 2.

In a disease state, the body's homeostasis has diverged from a "normal" state. Homeostasis is a robust process, meaning that it can take a lot to change it; usually it occurs slowly over a long period of time. Taking a pill that temporarily alters that homeostasis doesn't reset it to normal. Think freshman chemistry: equilibrium and Le Chatelier's principle. You changed the equilibrium, and the disease state homeostasis fights to go back to what it was.

As for genetic components, cystic fibrosis should be the easiest disease in the world to cure: it's caused by having two copies of a bad allele for a potassium channel that result in misfolded proteins. Insert at least one good copy into the genome and voila! A cure! Yet nobody has ever demonstrated success with gene therapy in humans. Which leads us to the third point...

We just can't figure out how to get gene therapy to work well. We also can't figure out how to permanently move a diseased homeostatic process (e.g., insulin resistance) to a normal state.

It's not that the pharma companies don't want to. Patient compliance with medication is horrible. If you tell a patient to their face that they will only live 3 more years if they don't take this pill every day, versus 10 years if they do, the average patient will only take the pill about 180 days of the year. So, if a drug company could sell a cure at the same cost as a lifetime of one-a-day pills (which they could), then they would absolutely do so. It's guaranteed money, like a magazine subscription versus buying a copy off the rack whenever.

Besides, many scientists at academic and government research institutions would rather find cures for diseases, yet are unable to. Unless we pull out the tin foil hats and speculate that they, too, are on the payroll of the pharma companies, it should be clearer that there are other reasons cures don't happen.

Re:Oblig: TED Talk

[Dishevel]

To become a complete asshole in this discussion let me point something out.
The more people who buy and take drugs solely because they saw an ad on TV the higher the production of that drug.
The more they can make the lower they can price it. The stupid people get weird side effects and / or die.
The ones who need it can get it for a little less money.
The world is a better place. :)

P.S. I think that was some real good asshole stuff there.

He volunteered...

[Gideon Wells]

On one hand, I agree with him. On the other, we have a judge who volunteered apparently just to make a stand in this case. How long before "receptive" judges start volunteering to argue for the other side...

Re:He volunteered...

[Anonymous Coward]

Not quite... if you RTA fully, you'll find out he only registered his interest in any cases involving patents with the lower courts, and the judge that was assigned the case requested to transfer it over to him, which he accepted.

So, no, he didn't get to rummage around in the bin for this one. It was 3 interlocking pieces:

1) The judge from Wisconsin the system assigned the case to knew (or was informed) of Posners interest in patent cases and asked to transfer it to him.
2) Various pieces of judicial administration machinery allowed the transfer.
3) Posner had to accept the transfer in his existing docket schedule.

Re:He volunteered...

[WillDraven]

There is a bit of a difference between "I'm taking taking this persons side" and "the fact that you're both in court over this at all is stupid."

No software patents!

[Infiniti2000]

This guy, Richard Posner, is my new hero.

Re:No software patents!

[tangent3]

Copyright laws still exist even if software patents go away.

Re:No software patents!

[w_dragon]

That would be a copyright violation, which has nothing to do with patents. Unless by 'rips off' you mean 'reimplements without access you my source code', in which case I'm not seeing the problem. Marketing is part of business, and if your business can't do it, even with a significant first-mover advantage, why should someone else not be allowed to compete with you?

Re:No software patents!

[jpstanle]

If he "rips it off" then he is violating copyright protections. If he copies the look and feel of the software with the intent to deceive or confuse the customer, then there is probably a trademark violation. If he just duplicates the functionality of the software, well, that's just competition. Deal with it.

Meh

[Greyfox]

I've seen some software things done that were truly patent-worthy. I've seen way - way more obvious lame crap. Overall I'd say they slow progress down more than they help it. Imagine what would have happened if someone had patented quicksort or some of the design patterns. The LZW algorithm that made GIFs inaccessible until the late 90s was bad enough.

Unfortunately, I don't see the current state of affairs changing anytime soon. There are too many people invested in the current system, and campaigning on a platform of IP reform isn't likely to gain much traction with the public at large, at least not without a LOT more *AA lawsuits. I'm sure the *AA realizes this and keeps its lawsuits fairly discreet and under the public's pain threshold, while they work on conditioning people that copying is theft.

Re:Meh

[betterunixthanunix]

I've seen some software things done that were truly patent-worthy

Except that mathematics is not patentable, and we has fundamental results about software being a form of math:

https://en.wikipedia.org/wiki/Curry-Howard_Isomorphism

So why make apologies for software patents? Either we stop trying to uphold the previous principles that made math unpatentable, or we stop giving out patents on math that is expressed as software. Otherwise we just have the mess that we see today.

not a fan of...

[ganjadude]

patents, but what about a compromise? What if software patents and electronic patents were only valid for like 2 years, that in the computer world is more than enough time for you to recover your research money without hampering the development of future tech. I would prefer none but I think this would be a fair compromise.

Re:not a fan of...

[Zaphod The 42nd]

I hate software patents and I think they're entirely unnecessary. As he said, being first to market is enough.

But I absolutely agree, if we're going to stick with them, a term limit of like 4 years on software patents would go a LONG way.

As much as I agree, that's not the task of a judge

[captainpanic]

A judge should check whether someone acts within the limits set by the law. A judge shouldn't be publicly trying to change the laws, just like a politician should not try to get involved in a court case to get someone convicted.

Still, I agree that our patent system is over-used, and it seems that it often inhibits innovation instead of facilitate it.

Appeal just waiting to happen

[Supp0rtLinux]

Its starting to sound like Posner had a specific agenda. After all, he volunteered for this one. It would seem that instead of being a judge and enforcing or enacting the law, he used this as his proverbial soapbox and to make a point. I can't wait for Apple to realize this (they probably already have) and appeal for a new trial to go forward thanks to Posner expressing his opinions, etc. The fact is, Posner doesn't make the laws; he interprets and applies them. By volunteering for the case, then shooting it down, then talking about his discontent with technological patents, he's made it pretty clear he has an agenda.

Re:Appeal just waiting to happen

[Samantha Wright]

He still he had an extremely sound point when he indicated that Apple and Motorola couldn't actually prove significant damages. I doubt there will be too many other judges (outside of perhaps a fabulously corrupt district) who would reverse that. The patent suits that seem to do really well are the ones referring to cutting-edge and recently-released products, where the economic harm doesn't need to be proven because it's too new to tell. (I think.)

Re:As much as I agree, that's not the task of a ju

[Anonymous Coward]

Actually he is doing what a Judge should do, he is examining whether software should fall under patent law. This examination and interpretation is under the purview of the judicial branch.

Re:As a software programmer

[Anonymous Coward]

You would be protected sufficiently by copyright, a patent means something else.

Look at it from this perspective, using patents the way you want limits the software industry by saying only this company can make any kind of a software that does this. This has a very negative effect on the industry because they last 16 years. Additionally, patents are supposed to be qualified to protect inventions and that those are unique and not easily thought of by others. By comparison, thousands of programmers have already created applications that partially duplicate everything that is in existence in someway now. So the real question is... are you really creating something new, or are you just trying to write software and use a legal methods to force your relevance instead of just being better at it than the programmer next to you?

Re:As a software programmer

[Zaphod The 42nd]

As a software programmer, I think you're loony, and you haven't been paying attention to how dangerous these patents are.

Programmers in Europe are now refusing to sell their software in the US. Why? It would cost them LITERALLY NOTHING to distribute. Its digital. They just have to make the sales, and collect the money.

So why don't they do it? Because they're TERRIFIED of US patents. Its a goddamned nightmare. You're walking blind through a minefield! You spend years of your life on some app, and then find out that because of a tiny patent from 10 years ago that has almost nothing to do with anything, you're about to be sued into oblivion.

Patents are STATE SPONSORED MONOPOLIES. In this day and age, technological advancement is its own reward. Being first to market is enough. You don't need government sponsored monopolies to convince companies to invest in R&D, they're not stupid.