USPTO Asks For Input On Software Patents

New submitter MouseTheLuckyDog writes "The patent office is reviewing its policy on software patents and is asking for feedback (PDF). Groklaw reports that the USPTO will be hosting a pair of roundtable sessions in February, during which the public will have the ability to attend and put forth their viewpoints. From the article: 'It's obvious the USPTO realizes there is serious unhappiness among software developers, and they'd like to improve things. Software developers are the folks most immediately and directly affected by the software patents the USPTO issues, and it's getting to the point that no one can code anything without potentially getting sued. I don't wish to be cynical, though, as that's a useless thing. So maybe we should look at it as an opportunity to at least be heard. It's progress that they even thought about having a dialogue with developers, if you look at it that way.' If you can make it to Silicon Valley on February 12 or New York City on February 27, go and make your voice heard."

Comments

I Would Like To Suggest "Accountability"

[Press2ToContinue]

I would like to see a new law on the books: "wrongfully or negligently issuing a patent", to be applied as follows:

In the case where a patent is declared invalid, I would like to see the issuing patent office and/or examiner held responsible for damages done....

And to reimburse the patent applicant for:
1) the fees charged for granting the patent
2) legal fees incurred by the patent holder in attempting to defend the patent before it is struck down

And to reimburse any party who is financially damaged by the patent office having wrongfully issued a patent, such as
3) to any company which licensed the patent: any license fees paid out to use the patent
4) to any company which was sued for infringing on the patent: court costs and damages

Patents are applied for in good faith. If the recipient can be irreparably damaged due to negligence or other actions which wrong the recipient, shouldn't there be legal recourse?

Do you think the USPTO might hold "inventiveness" and the "obviousness" tests, and the search for prior art to a much higher standard? Do you think they might have the motivation to remedy any weaknesses in the system and keep on doing so?

Accountability anyone?

Re:I Would Like To Suggest "Accountability"

[RobertLTux]

what i would suggest is pure software patents be BANNED (and all currently active software patents voided)

now if software is some part of an actual physical product (ie something that would go THUD is dropped) and is an intergral part of said physical product then you can have a patent on the entire setup.

also there should be a rule of "must infringe on all parts" for a patent to be violated (dropping out clauses that don't apply ie claim for water use when the infringement is land use if there is a land use clause)

Re:I Would Like To Suggest "Accountability"

[Hentes]

now if software is some part of an actual physical product (ie something that would go THUD is dropped) and is an intergral part of said physical product then you can have a patent on the entire setup.

I never understood this argument. If the software is purpose-built for your hardware, then there's no use in copying it without said hardware. Here in Europe a similar precedent gets misused to push all kinds of software patents. Getting a patent on the hardware part only should be enough.

Re:I Would Like To Suggest "Accountability"

[TheSpoom]

In reality they'll have to phase them out; existing patents would need to continue to be enforceable during their lifetime. Otherwise, current patentholders will (rightfully) sue the federal government.

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

Your suggestion, like so many proposed laws, would simply cause all examiners to quit/blanket reject and cause a few years of confusion for patents, without actually fixing anything, all for the sake of smugly "sticking it to" a few hypothetical examiners. Neither I, nor any sane person, would choose to put myself at risk for a multi-billion dollar obligation for personally overlooking an obscure [to me] piece of prior art in a field I'm not an expert in. If I hand you the plans for a circular saw hand guard, a method for tuning a radio transmitter that grants exceptional range, and a process of constructing carbon fiber materials, with the stipulation that if you mark any of them 'innovative' incorrectly you will lose a few billion dollars, is there a chance in hell you would take that risk? There is, quite literally, no patent which would have been granted under your proposed law.

Perhaps that is your intention, but if so, why don't you just say "Amend the Constitution to remove patents (because the required process for checking validity is prohibitively expensive and so often incorrect), and dissolve the PTO?" I'm no fan of most of the patents that get discussed on /., but I recognize that the solution is not to tar and feather a small group of individuals and pretend that they were the root cause of every single problem with the system.

Re:I Would Like To Suggest "Accountability"

[h4rr4r]

How could they sue?

They had the patent until the law changed, so nothing I see new there. Lots of things are one way until the law changes then another.

Re:I Would Like To Suggest "Accountability"

[Jiro]

It's true that that proposal would make people liable for billions of dollars. But that proposal makes people liable for billions of dollars because bad patents can cause damages of billions of dollars.

If bad patents can cause billions of dollars in damages, then *someone* ought to be held responsible for that. The only question is who. Currently it's the company who "infringes" on the bad patent that faces the damages. That's no better than making someone else pay, and in some ways is worse because the company didn't even make a bad decision--they were just screwed over by someone else.

Re:I Would Like To Suggest "Accountability"

[Sarten-X]

The hardware part doesn't matter, though. Hardware can be emulated in software, and since that software emulation wouldn't be covered by the hardware-only patent, and couldn't have its own patent, there's now a publicly-available system that runs your software. The actual hardware becomes worthless, being purchased only as a means of getting an original copy of the latest software. Remember what happened to all the separate TVs, telephones, old computers, fax machines, and typewriters we used to have? That's the eventual fate of all purpose-built hardware. It's discarded as soon as its function is absorbed by something else.

Re:I Would Like To Suggest "Accountability"

[spire3661]

If this were true,the entire American Populace could sue Congress for extending copyright on works ex post facto. Public domain status is payment for a limited monopoly. Once Congress changed the rules, WE THE PEOPLE lost a good chunk of the social bargain. The door swings both ways.

Re:I Would Like To Suggest "Accountability"

[Joce640k]

They could pass new laws to make it much easier to invalidate a patent.

Most software patents weren't applied for in good faith anyway and should never have been approved. The bar for 'non-obviousness' seems to have been set at a negative height for most of the applicants.

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

I would like to see the issuing ... examiner held responsible for damages done....

Would you examine patents under those conditions? Who in their right mind would?

Re:I Would Like To Suggest "Accountability"

[morgauxo]

Accountability yes, damages no.

Think of your own job. Whatever you do, how much can it cost the company when you screw up? Do you use any expensive equipment? Does your performance affect the decisions of any large account customers? Do you handle large quantities of product or highly valuable products? Can you afford to replace them? That would be the equivalent of taking damages from the individual examiners.

Damages from the issuing office might make a little more sense but ultimately that would just be punishing the tax payers.

What we need is a change in accountability. Performance is measured mainly on how many patents the offices issue. They are constantly being flooded with applications and the idea is that the patent offices need to keep up or this will harm the economy by slowing businesses down. It's also believed by politicians that the number of patents granted to US companies is somehow a valid measure of how our technical industry is doing vs other countries. That attitude needs to go!

Instead, hold patent offices and examiners accountable for quality of patents granted or not granted. This could be measured by percentage of patents invalidated in court and percentage of rejects that succeed later. That last one might be tricky to measure but it would be important too. Otherwise, maybe keep looking for quantity but also look for quality. It should affect their job reviews, raises, promotions and such just like happens for any other kind of worker. If they are really bad... they get fired.

This will mean huge delays in getting a patent granted given the current quantity of applications. That flow needs to be controlled! One sollution might be increasing the cost to apply for a patent so that only worthy ideas are worth attempting. The problem with that is a price that keeps larger companies in check shuts out individuals and small companies entirely. Instead.. I propose an application fee that gets larger based on how many applications you have in the system. Large companies still might get around this by having their individual employees apply for the patents and then transfer them back to the company. Some rules will be needed to prevent this. Maybe something stating that any contract requiring that an employee transfer patents from the employees name to the company are not valid. The company must apply for the patent itself or the employee might use it as leverage for more money or even sell it to someone else.

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

Troll.

Re:I Would Like To Suggest "Accountability"

[Press2ToContinue]

Anonymous Coward.

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

The problem is that there is no single person whose fault the bad patent is. Consider if A (arbitrarily wealthy) and B (not) independently invent and locally produce X, but only A files for it, unaware of B. B resolves not to apply for a patent. Patent examiner C, also unaware of B, grants it. Company D hires B and begins producing Y, a variant of X that 'infringes'. After a few years, A's patent is granted and he (now a fairly large player) becomes aware of D (a very large player) and (because Y was released after he applied for the patent on X) sues. D, due to their ace-in-the-hole of B, cheerfully goes to court.

As far as A is concerned, he invented something, patented it, and is producing it.
As far as B is concerned, he invented something, but didn't bother patenting it. Doesn't matter, as his prior art should be enough to protect him against infringement claims.
As far as D is concerned, they are safe because of B's guarantee he won't patent it.

So then A sues D, after a long battle the patent gets invalidated, so who is to blame? Not A, he invented and patented the damn thing legally. Surely not B, he's taking the Benjamin Franklin (I think) approach. If B isn't to blame, I can't see a real reason that D is. Do you seriously expect C to scour the entire country himself to find B?

The correct answer would seem to be that if A and B came up with the invention, the patent should be invalid on grounds of obviousness, not prior art. But just because Newton and Liebnitz both wrote about calculus doesn't make their advances obvious. If math were patentable, and Liebnitz invalidated Newton's patent on integration, would you hold C responsible for not considering calculus obvious? Nobody in my example, I believe, "deserves" to lose a few billion. Various parties were simply unaware of each other.

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

If they *only* get fired for doing terrible at their job, I can see corporations secretly sponsoring people to go get a job there in order to specifically grant that business's patents.

Then the worst thing that can happen is someone loses a job, although they are being very much compensated by the corporation who wanted patents. Even if they went to jail for being a bad patent officer, it could still be worthwhile to someone to do some time for a few million dollars. People's corruption ruins basically everything.

I say get rid of all patents, they are a ridiculous idea in like 90+% of cases other than stuff like pharmaceuticals.

Re:I Would Like To Suggest "Accountability"

[Shetan]

Doesn't the U.S. Federal Government have Sovereign Immunity?

Re:I Would Like To Suggest "Accountability"

[Steauengeglase]

I'll settle for the patent office taking that "non-obvious" bit into consideration.

Re:I Would Like To Suggest "Accountability"

[suutar]

yes, yes it does.

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

Shepard.

Re:I Would Like To Suggest "Accountability"

[StripedCow]

What I would suggest is the following. Currently, the USPTO gets paid for every patent which they validate. This is so obviously perverse that it actually hurts.
Now instead of letting that money flow into the hands of the USPTO, it should go somewhere else, perhaps it should go into education.
This, imho, would already be a huge improvement.

Let's take it one step further. Let the patent office PAY for each patent they validate. A second government could then pay them back based on the societal impact of the patents they approved (measured, say, 5 years after validation).

Thus, with this two-tier model, lack of societal impact means a loss for the USPTO.

This means that, under this model, the USPTO will not so easily approve simple things such as "one click shopping" because they might lose on it on account of a lack of social impact. Similarly, patent trolling will be actively barred by the patent office (no product means no social impact). However, a patent for a new medicine may be approved.

Re:I Would Like To Suggest "Accountability"

[gbjbaanb]

Hardware can be emulated in software

I understand how a software keyboard can emulate a physical keyboard, but how about a webcam, or a graphics card, or a mobile phone. In all cases, you can patent the hardware device and let copyright laws handle copying of your software whilst still allowing someone else to still use the concept you came up with in your hardware+software combo.

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

from we the Peoples : hell yeah !

from we the Corporations : hell no !
 

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

To follow up, the point I completely forgot to make is that the assumption "bad patents can cause billions of dollars in damages" is the real problem, not who pays that damage. In the recent case of Apple v Samsung, the damages didn't even make sense. Full stop. Not to mention lost productivity as various companies/people take long, circuitous implementations to avoid infringing on patents that really shouldn't exist. That's what needs to be fixed, and what will probably never be fixed.

Re:I Would Like To Suggest "Accountability"

[suutar]

Patents are applied for in good faith.

Your optimism is refreshing.

Re:I Would Like To Suggest "Accountability"

[suutar]

Ah, I wish I hadn't already posted. This is a very reasonable question that any patent system should try to answer.

Re:I Would Like To Suggest "Accountability"

[halfEvilTech]

I would say stop approving all of them and revoke the every valid software patent on the books.

Re:I Would Like To Suggest "Accountability"

[Hentes]

So how do you use an emulated chainsaw for logging?

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

That's like punishing the police for enforcing laws that might or might not be morally right, but entirely legal.

If you're willing to go that step, why not then, punish the ones truly guilty, like the politicians who put those laws in place?

But would that even work? In the USA if there's even a small exploitable hole, there's thousands of people willing to sue and make a fast buck off someone's misery.

The proper reply to the article should be:

"what software patents?"

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

Having stuff enter the Public domain isn't a payment for copyright, it's the default state.

You put it out into the world for other people to see, they get to use it as they see fit. Except this made it hard for authors to reap any benefits from their work. Thus, the government said, for a specified number of years, we will help you protect your investment by giving you, the author, the sole right to copy and distribute your ideas. After that period is gone, we will no longer provide you that protection. Without that protection, any writings/etc released to the public are, well, public again.

Authors aren't putting material *into* the public domain; they are losing the protection of the government to limit who can copy and distribute their material. As soon as the material gets released, it's public. It's a subtle but important difference.

Re:I Would Like To Suggest "Accountability"

[Sarten-X]

Emulate a tree.

I'm actually serious. If the software is the valuable part, emulate the whole system the software runs in, including all relevant parts. For a "chainsaw" program that may, for example, plan a cut to maximize the usable wood from a tree trunk, it may be sufficient to emulate the tree in a simulation with the custom hardware, complete with knots and flaws, and run an implementation of the chainsaw program (as disclosed in the patent or reverse-engineered from an original copy) in that simulation. The program gives the simulation a cutting plan, and the simulation can do anything with the plan, including running a competitor's chainsaw.

Thanks to emulation, any benefit from tying valuable software to patented purpose-built hardware is lost. Since the hardware isn't used, the patent isn't infringed, but the software can be copied (reimplemented) easily. The whole point of patents is to allow inventors time to market an invention before the competition can copy it, so having purpose-built hardware is actually worse (due to expense) than simply not patenting anything.

Re:I Would Like To Suggest "Accountability"

[Sarten-X]

I understand how a software keyboard can emulate a physical keyboard, but how about a webcam, or a graphics card, or a mobile phone.

Just like we've done many times with sound cards, old graphics cards, and serial devices. A piece of hardware is emulated, and it's connected to a non-infringing piece of real hardware. If the real value is in the software (as it would be in a software patent replaced by a patent on purpose-built hardware), then any similar hardware will do, and the "protected" software isn't really protected any more.

Re:I Would Like To Suggest "Accountability"

[CanHasDIY]

Khaaaaaaaaaaan!

Re:I Would Like To Suggest "Accountability"

[jmauro]

I'm not a lawyer, but there would likely be case for a seizure without just compensation must be paid under the 5th Amendment. The courts consider patents to be property so invalidating all of them according to the courts would be the same as taking the patent owner's property (that they paid for via application fees and put money into defending). I don't know if they'd win, but they'd at least try to litigate on it.

There are probably other things that the Government would be sued for if they blanket invalidated existing patents, but I cannot think of any more at this time.

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

The whole point of patents is to have inventors tell the public how their invention works.

To allow inventors time to market an invention is not the point, it's a concession.

Re:I Would Like To Suggest "Accountability"

[Yaa 101]

Bull, every company has insurance for mistakes by workers, the patent office should have too.

Accountabillity and damages go hand in hand, if the system awards damages to certain parties then the system has to hold to the same standards, otherwise you can call it corruption.

Re:I Would Like To Suggest "Accountability"

[gbjbaanb]

the protected software was never protected in the first place - its the hardware that gets protected, so someone else cannot just make a different piece of kit that works the same way, as its patented.

They can make a different piece of hardware that works in a different way though, and then (fortunately) we can change the software so things still work with it.

Re:I Would Like To Suggest "Accountability"

[flyneye]

Just remember, the clowns from Apple, Microsoft and every other pain-in-the-ass will be giving their $.02 , as well.
Shmoozing these guys up and taking them out to lunch at a brothel might help.

Re:I Would Like To Suggest "Accountability"

[infinitelink]

Actually, the case used to justify software patents ruled, as parent suggests should be, not that software can be patented, nor a specific piece of software integral to a machine can be patented, but that a process including software in its functions can be patented--the patent is not invalidated because of presence of software. Its on this case, wrested and twisted to inanity, that lower courts have fabricated "software patents": anymore, don't expect good behavior out of the judicial system, "...only for a moral and religious people" and all (note "religious" in an old sense means reverence, which most of those in branches of government--constitutional and administrative; the leeches that attach themselves for good or ill--whether lawyers, lobbyists, servicers, providers of goods agents; today, are not so of the laws as intended when written).

Re:I Would Like To Suggest "Accountability"

[ShakaUVM]

>What I would suggest is the following. Currently, the USPTO gets paid for every patent which they validate. This is so obviously perverse that it actually hurts.

Classic conflict of interest. While we're at it, let's:
1) Not all police departments to be funded by assets they themselves seize.
2) Not let judges in ticket trap villages draw their income from finding people guilty of doing 26 in a 25 zone.
3) Not let the highway patrol draw funds from tickets they issue.

It's not only a conflict of justice, but it's a perversion of the justice system entirely. I don't know why anyone would think government departments are immune to the lure of money - every bureaucracy I know engages in empire-building, and constantly demanding more, more, more funds. Giving the fox the ability to legally seize the chickens is the worst idea in this country's history.

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

The federal government is self insured.

Re:I Would Like To Suggest "Accountability"

[reve_etrange]

I have to add: not only do they get paid to validate, they get paid more to invalidate (reexamination is the most expensive fee).

The USPTO has a financial incentive specifically to accept invalid patents knowing they are likely to be reexamined.

Re:I Would Like To Suggest "Accountability"

[Simon Brooke]

I would like to see a new law on the books: "wrongfully or negligently issuing a patent", to be applied as follows:

In the case where a patent is declared invalid, I would like to see the issuing patent office and/or examiner held responsible for damages done....

And to reimburse the patent applicant for:
1) the fees charged for granting the patent
2) legal fees incurred by the patent holder in attempting to defend the patent before it is struck down

And to reimburse any party who is financially damaged by the patent office having wrongfully issued a patent, such as
3) to any company which licensed the patent: any license fees paid out to use the patent
4) to any company which was sued for infringing on the patent: court costs and damages

Patents are applied for in good faith. If the recipient can be irreparably damaged due to negligence or other actions which wrong the recipient, shouldn't there be legal recourse?

Do you think the USPTO might hold "inventiveness" and the "obviousness" tests, and the search for prior art to a much higher standard? Do you think they might have the motivation to remedy any weaknesses in the system and keep on doing so?

Accountability anyone?

That is an exceedingly good suggestion. Consequently, no government will ever adopt it.

Re:I Would Like To Suggest "Accountability"

[cundare]

>now if software is some part of an actual physical product (ie something that would go THUD is dropped) and is an intergral part of said physical product then you can have a patent on the entire setup.

Ever wonder why the Federal government has as much respect for Slashdot opinions about patent law as it does for Glenn Beck's on-air interpretations of the Constitution? It's because of postings like this (and the equally ill-informed-but-self-important proclamations in some of the replies). And if you didn't blink when you read that posting, you're part of the problem. Despite implications that could be drawn from the faux patent-news stories routinely posted on this site, the patent system already has such a "tangible-machine" (surely you remember the Bilsky holding?) requirement and, except for a brief period before the case law caught up with technology, always has. A patent claim that does not include some sort of tangible apparatus (that is, "something that would thud if dropped") would be quickly rejected on 101 grounds ("lack of statutory subject matter") and this type of rejection is common, albeit easily overcome. In fact, one of the first things Director David Kappos did upon taking his position was to issue a high-profile memo to all USPTO examiners directing them to be sure to enforce this requirement.

If this observatoin causes you cognitive dissonance, you might want to consider the possibility that patent law, as presented and discussed in silly forums like this one bear as much resemblance to the way the patent system actually does work as, um, a Glenn Beck whiteboard lecture might bear to real-world macroeconomics. My advice: If you're really interested in intelligently discussing (and educating yourself about) the patent system, steer clear of this self-rationalizing ghetto and visit legitimate sites like Patenty-O, where posters at least bother to read (and, for that matter, know how to read) a questionable patent's claims before making snarky comments about that patent.

Re:I Would Like To Suggest "Accountability"

[cundare]

PS: And Groklaw, the site cited in the /. posting, apparently isn't exactly a credible source for legal information about the patent system. In that same article, the author, after quoting s112(f), admits "They think software developers know what that is saying? I don't know from the words alone, and I'm a paralegal."

Jeez, if I was a paralegal working in IP, I wouldn't admit that!! 112(f) is covered in every first-semester patent course and, to be honest, is not that confusing as written. It basically says that you can express an element of a claim as a function, without specifying the means by which that function is performed, so long as you describe examples of those means in the accompanying written description of the claim. Your patent will then cover implementations that incorporate those means, as well as equivalents (and the exact definition of "equivalents" has been hammered out over the years by the courts). Among other things, this makes for easier-to-read claims. So, for example, you could claim "a machine that includes a lighting function," and this would not be rejected for vagueness if the written description, elsewhere in the application, states that "lighting functions can include incandescent light fixtures, LED light fixrues, and fluorescent light fixtures." Then the patent would include inventions that incorporate those three types of "lighting functions," as well as obvious equivalents, like, for example, an LED flashlight. This is simple stuff, well-known by every practitioner and if a Groklaw author finds it confusing, then anybody who accepts his opinion at face value might as well (sorry!) be listening to Glenn Beck.

Unfortunately, the patent system is one of those things about which everybody has an opinion and there is often an inverse relationship between the virulence of that opinion and the knowledge of the opinion-holder. I don't understand it. We don't have these emotionally charged discussions about, say, oncology drugs or American Idol contestants.

Re:I Would Like To Suggest "Accountability"

[lsatenstein]

Should the USPTO have gone to the public with this question about 25 years ago?
I read somewhere that Russia does not provide or recognize software patents. Bravo Russia.
And the Russian world appears to run on software as much as anywhere else, and their IT industry is flourishing

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

"Sovereign Immunity" is another way of saying, "We choose not to acknowledge the obligations the Bill of Rights placed upon us and which we swore oaths to uphold."

Re:I Would Like To Suggest "Accountability"

[Anonymous Coward]

I bet you like many of the other repliers have never been associated with a patent application.

In my experience, small company with three active patent applications, the examiners receive performance evaluations based upon how many applications they negate. If the examiner attempts to negate an application that successfully goes through the appeals process, the examiner receives a demerit.

The problem with the patent process is not necessarily the process itself. I see the problem as one of ignorance in the examiners. Here's a few examples:

1. Advertising during TV show: http://news.cnet.com/8301-17852_3-10319801-71.html. The patent holder, Denizen, should never have received this patent. Obviously the examiner never watched or listened to old TV and radio shows. You can read the patent here: http://www.patentstorm.us/patents/6859936/description.html

2. Computing device with rounded corners: Star Trek: The Next Generation. The patent holder, Apple, Inc., should never have received this patent. The idea was already part of the public domain as it was conceived of and publicly shown worldwide on TV and in movies.

Discover more "obvious" ideas granted patents because the applicant was a large corporation by examining patents granted to Apple, Inc, Google, Oracle, Microsoft, and IBM. You can choose other companies if you like. The point is the examiners are educated in legal issues and how to search the patent records. They are not taught how to determine "obviousness" or what already exists in the public domain.

Programmers, myself included, should stop complaining and be inventive. Copying and using the ideas of others does not promote innovation. That stifles innovation and creates lazy programmers.

Why should someone else benefit from yours of my ability to find a problem, discover a solution for the problem, and allow larger companies to come along, steal the idea, and put it into their software? That's just giving your competition the abilty to keep you pinned under their thumb. Small companies become large companies through innovation and being able to protect those innovations.

Therefore, I call upon all programmers to start being innovative and demanding protections for their ideas.

Re:I Would Like To Suggest "Accountability"

[TheSpoom]

If the US Federal Government argues sovereign immunity as a defense to enable ex post facto (i.e. retroactive) law changes, we've got serious problems.

Re:I Would Like To Suggest "Accountability"

[TheSpoom]

Also, and I am not a lawyer so take this with a large grain of salt, but the Tucker Act could be used with the understanding that a patent is an implied (perhaps even explicit) contract with the Federal Government, which would enable a lawsuit.

HOW IS THIS FOR INPIUT !! SHOVE IT !!

[Anonymous Coward]

Where the sun don't shine !!

Ban them!

[eksith]

A program/software/instructions for a computer, whatever you call them, should be covered under copyright, not a patent. Algorithms should be treated as works for art. Functional (or imperative or whatever) art, but creative works nonetheless.

The end.

Re:Ban them!

[Anonymous Coward]

Copyrights last much longer than patents. Beware of unintended consequences.

Re:Ban them!

[Anonymous Coward]

Terrible idea. As broken as patent law is, copyright law is even more fucked up. Plus the term on copyright is life of the author + 70 years. This is far too long for the rapidly changing software industry.

Algorithms should not be patent-able. They are simply mathematical processes and should not be treated as copyright-able or patent-able works.

Re:Ban them!

[jedidiah]

Computer programs are already treated as copyrightable works. So there would be no new unintended consequences.

Re:Ban them!

[Hentes]

Right now, implementations of patented algorithms also get copyright, patents don't help against copyright at all.

Re:Ban them!

[Ikonoclasm]

The code and algorithms are already copyrighted. Every creative work in the US is automatically copyrighted, so that concern is moot.

Secondly, algorithms can't be patented. The law explicitly forbids the patenting of math. You can only patent an implementation of the math.

Strictly speaking, software should be unpatentable. Software is, at its most fundamental level, pure math. However, much like gene patents, the US courts have decided to conveniently ignore the law where it states that Nature can't be patented (math and genes fall under Nature) in order to allow industry to prosper. Unfortunately, by granting individuals temporary monopolies, the USPTO has insured that those industries have become legal minefields that are stagnating out of fear of litigation.

Re:Ban them!

[stewsters]

Is their recourse for us when the patent office patents nature? On a side note, anyone want to help me patent a system that exchanges gases in a fluid using two expanding and contracting sacs?

Re:Ban them!

[WaywardGeek]

Copyrights and trade secrets protected the software industry just fine before the USPTO opened the flood gates on software patents in the early 90's. They should stick to the original intent of the constitution, and protect the free flow of ideas by banning patents on mathematical algorithms (which includes software, IMO). They should not overturn the patents they've granted - that would harm the companies that filed them - but going forward, patents should cover something more than what can be executed in any mainstream computer language. If I can violate your patent simply by writing C code, it should not be patentable.

Software patents have resulted in:
The Open Invention Network
Peer to Patent
Oracle suing Google over Java
37 Android related patent suits
Nearly killing RIM
Linux patent suits ...

I'm afraid we're at the point where the anti-software-patent people warned we'd be. Small companies live in terror of being sued over any software they write. Big companies waste billions of dollars in court. Coders like me intentionally "code dumb", to avoid accidentally using a patented software idea. It's a terrible waste, and it makes me very sad to see America throwing away it's software innovation lead in this way. Thank God software patents weren't around when we wrote so much of the software that still powers the world. If they were, we'd all still be renting time on IBM mainframes. Just imagine a world where Donald Knuth patented all his ideas.

Re:Ban them!

[Anonymous Coward]

How about if you want a software patent, then you must release all source code related to said patent, and relinquish copyright. As the whole point of the patent system was to have inventions released to the public in exchange for a monopoly guarantee, it seems that the the source would need to be available for any patent to be granted. And as no software lives inside a vaccuum, any required libraries must also have their source released.

I have a suspicion that software patent applications would plummet if you had to submit source with the application. In addition, defending against a patent would include source comparisons, and not just "the funtionality looks similar" arguments.

Re:Ban them!

[Anonymous Coward]

You mention that we shouldn't void the existing software patents because of some harm the companies that filed the patents would experience. I'd say we must void them. At most, the company that filed them would get a refund of their filing fee - say if they've held the patent less than half of the supposed patent lifetime. Pure NPEs and trolls like Lodsys, Intellectual Ventures, etc. would fold overnight. No harm there as all they exist to do is take value out of the system. Other companies that actually filed patents and are practicing them would now be subject to competition. That is a good thing; it forces more innovation. No more Microsoft getting money for all Android phones. No Apple getting money for all Samsung phones (which may yet be the result of the cases they have going).

Re:Ban them!

[Anonymous Coward]

Not really. copyright is very thin on computer programs. Basically it has to be almost a word for word copy. Copyright only applies to the "expression" of the algorithm.

For example:

10: Print "Hello"
20: GOTO 10

would not likely be infringed by:
int main void()
{
while (true)
printhello();

return 0;
}
void printhello()
{
printf("hello");
return;
}

Re:Ban them!

[Anonymous Coward]

Algorithms should be treated as works for art.

Why? Algorithms aren't created as a work of art and most programs aren't either.

Demoscene programs like elevated by Rgba & TBC that are specifically made to be art where graphics, music and even the code (As it is written to fit within 4096 bytes.) are all made to be part of an artistic composition should be treated as art and covered by copyright. Games would generally fit in this category too since they also contains those elements.
A program that doesn't contain any creative part like an office program shouldn't, it's just general programming and if you consider writing those an art you are probably doing it the wrong way. For a competent programmer it is just a matter of getting it done. The same goes with plumbing, if you consider it a work of art you should probably find another occupation.
And no, this is not different standards. Copyright only applies to works of art, regardless of if it is a sound recording or paint on a wall.

Re:Ban them!

[WaywardGeek]

There are other problems besides the expense. EDA companies have patented lots of very obscure algorithms, rather than keep them trade secret. If you take away the patents, then their competitors will be free to use their ideas, which could be fatal to some companies.

Unfortunately, it's a moot point. I went and read the poster's links, and the USPTO has no intention of considering any broad limits on software patents. They're just seeking feedback on nonsense like whether XML can be used in a claim. These meetings wont be worth anyone's time.

Re:Ban them!

[Anonymous Coward]

If patented ideas that their competitors could easily copy are the only thing a company has going for them... maybe they should fail.

Re:Ban them!

[WaywardGeek]

Requiring source code wouldn't do much to discourage software patents.

I'm listed as an inventor on 22 patents so far. Several of them are software patents. I didn't file any originally, until a competitor patented a key software algorithm we'd used for years at a previous company - an algorithm we could not function without. Now I encourage that we patent all company-critical software ideas. Anyway, I've been filing them since the early '90s. My early patents all included full source code, and one has many thousands of lines from our commercial product - enough to actual run the algorithm on real designs. If you have a new logic optimization idea, have you fully disclosed how to implement it if you haven't included a netlist parser? Early software patents included full source code, which gradually was reduced until now a bit of pseudo code in the patent text is generally enough. The old requirement for source code didn't seem to slow patent applications.

Every patent lawyer knows that you can't violate a patent in your head. The same is true if you write an idea down on paper. You also can't violate a patent by writing it down in Notepad on a computer, or even if you save it, and share it with friends. However, if your idea is a sequence of steps a computer could execute, and you "run" it, chance are high that you've just violated somebody's patent. Being a software developer in America is a bit like being an illegal immigrant. You just keep quite, keep your head down, and hope that nobody bothers looking at what you're doing too closely.

Re:Ban them!

[suutar]

Agreed, but remember that copyright law _already_ applies to software and we seem to be doing okay on that front, mostly (perhaps due to the number of different ways to express an idea, relative to the number of ideas which is what patents try to cover).
And go sign https://petitions.whitehouse.gov/petition/shorten-excessive-copyright-terms/XMc72zjc

Re:Ban them!

[Kookus]

If I can violate your patent simply by writing C code, it should not be patentable.

You're forgetting that all of that software can be simply written in C code. The difference is timing. Knowing today to write code that does ray tracing is quite different than writing that code 30 years ago. All code becomes "obvious" after it has been released and used, it's just before then that it's not obvious.

So no, whether or not you can write code to do the same thing should not be a criteria for whether something is patentable. Either software patents are allowed, or not, no in between.

Re:Ban them!

[Theaetetus]

Secondly, algorithms can't be patented. The law explicitly forbids the patenting of math. You can only patent an implementation of the math.

Strictly speaking, software should be unpatentable. Software is, at its most fundamental level, pure math. However, much like gene patents, the US courts have decided to conveniently ignore the law where it states that Nature can't be patented (math and genes fall under Nature) in order to allow industry to prosper.

Which law is this that "explicitly forbids the patenting of math" and "states that Nature can't be patented" that courts are allegedly ignoring?
I'll save you the time searching - it's not a law at all. It's a quote in a Supreme Court decision interpreting 35 USC 101, which states that new and useful processes, machines, articles of manufacture, and compositions of matter are patent-eligible. And it's a bit odd that you're essentially saying that the Supreme Court is conveniently ignoring the Supreme Court.

To return to your original point, though, as you note, pure software is not patentable. However, implementations are - and so, "software patents" that actually recite specific implementations performed by a machine are patentable, because they're not unpatentable "pure math".

Re:Ban them!

[chihowa]

Is their recourse for us when the patent office patents nature?

There is recourse. You can shell out obscene amount of money to take the patentholder to court and have the patent invalidated. The patent office seems ok with this and is working on the principle of "grant patents for everything and let the courts sort them out". You can see how well that philosophy is working.

Re:Ban them!

[Anonymous Coward]

Math cannot be patented: Gottschalk v. Benson.

Re:Ban them!

[nullchar]

That's the point! Copyright the exact work, while the concept is available for anyone to re-implement. This happened in software for years before software patents.

Re:Ban them!

[Anonymous Coward]

Agreed. The mere fact that the USPTO is asking for input on patents says they do not fully understand what they need to understand.

My input on software patents...

[jkrise]

Input -----> Process -------> Output

100000 applications for software patents -----------> USPTO ------------> All rejected.

All software is, by definition, math. And all math, by definition, is not patentable.

Re:My input on software patents...

[Anonymous Coward]

> All software is, by definition, math. And all math, by definition, is not patentable.

All inventions can be defined by a processing using math, therefore patents should not exist.

Re:My input on software patents...

[Anonymous Coward]

All software is, by definition, math. And all math, by definition, is not patentable.

Yeah, that logic ain't gonna fly in a USPTO debate. You're lucky that (apparently) nobody from there reads Slashdot, else it wouldn't take much for them to derive "all physical inventions are, by definition, atoms. And all atoms, by definition, are not patentable" from that. Then you'd be labeled as a loony (moreso if you seriously said "YES, exactly!" at that derivation) and they'd have a nice example they can use for future reference of how out of touch we are with reality. Then you get a harsh lesson in just how small a group we are in the grand scheme of things when everybody agrees with them.

Try rephrasing that, is what I'm saying.

Re:My input on software patents...

[Anonymous Coward]

> All software is, by definition, math. And all math, by definition, is not patentable.

All inventions can be defined by a processing using math, therefore patents should not exist.

The key difference is between "using math" and "fundamentally being nothing other than math."

Re:My input on software patents...

[jkrise]

All inventions can be defined by a processing using math

Eh? Salicylaldehyde is prepared from phenol and chloroform by heating with sodium hydroxide or potassium hydroxide. Can this process be defined using ONLY math?

Re:My input on software patents...

[Sarten-X]

All physical inventions are, by definition, following the laws of physics. All physics is, by definition, math. And all math, by definition, is not patentable.

The whole point of patents is to protect the market incentive for creating, rather than copying, technology. That doesn't somehow become magically irrelevant when software's involved. Producing a new algorithm that's better suited to a particular purpose takes a lot of work and research, and is easily copied by others once it's in production. Patent protection should still apply, to allow the original inventors the time to bring their product to market, and have a chance at recouping their investment, and maybe even profiting.

What's wrong with software patents is the speed at which the state of the art is advancing. Where an engine design remains relevant and useful for 20 years, computing technology progresses far faster, with obsolescence setting in after as few as two years. That's what I'd like to see changed. For each field of invention (e.g. computing, manufacturing, consumables, artistic production, etc.), a patent's life should be based on how fast that field progresses, with the lifespans reevaluated periodically. Software patents, for example, could reasonably expire after only three to five years. In that time, whatever improvements the patented algorithm made will likely be surpassed by simply using an older algorithm and faster hardware, so the patented algorithm itself is no longer driving innovation. On the other hand, a new vehicle engine design might not even see appreciable market penetration for a decade after introduction, as older cars are slowly replaced. Such a patent should live longer.

Re:My input on software patents...

[Anonymous Coward]

A recipe is just a type of algorithm. If an algorithm for software is math, why wouldn't an algorithm for chemistry or cooking be considered math too?

Re:My input on software patents...

[j. andrew rogers]

"All software is, by definition, math. And all math, by definition, is not patentable."

The problem with this argument is that the same reasoning that defines software as mathematics also defines *all* patentable subject matter as mathematics. If you can describe it, it is literally a finite algorithm. If a software expression of an algorithm can be excluded on the basis that it is an "algorithm" then the argument can be applied to all subject matter. (see: algorithmic information theory)

What is not patentable are mathematical concepts, not specific processes that implement those concepts. You cannot patent the idea of "sorting" but you can patent a sorting algorithm. This is an important distinction: there are an unbounded number of sorting algorithms that can be invented that express the mathematical concept of sorting so inventing one particular expression does not preclude anyone else from inventing their own expression.

This does not speak to the "on a computer" type patents (which are silliness) but it is the reason that computer algorithm patents are generally accepted in most countries (yes, even Europe). A consistent policy that banned computer algorithm patents would ban most other types of patents as well.

Re:My input on software patents...

[jkrise]

Try rephrasing that, is what I'm saying.

I feel it will not work with the nutcases in the USPTO; so absent summary rejection of ALL software patent applications, and voiding of past software patents granted, nothing will happen. Instead of focusing on the USPTO which is a gone-case, I suggest a different approach when patents are used in litigation, to solve the problem. This is what I posted in Groklaw, on a related discussion:
--------------------
The PTO has a limited amount of time to inspect each patent (I believe it's around a day per patent).

This is the exact problem, and in the rest of your post, you have detailed how to DEAL with the problem. What I am advocating is, how to solve the problem? The fact that the PTO has just 1 day to inspect a patent, implies that innovation is happening at a rapid pace these days. So a roughly 2-decade monopoly on a patent in these modern days; is totally not justified, since entire businesses and ecosystems are impacted by such long term monopolies.

Consider that there are about 2 billion Windows devices worldwide, in about 2 decades. In just 2 more years, it is projected that there could be more than 2.5 billion Android devices, surpassing Windows devices.

So a patent that cripples Android for 2 decades means ENORMOUS incalculable harm to the progress of science and arts, which is the raisson d'etre of patents.

So the cure to the PTO having just 1 day to inspect a patent application, is to drastically reduce the number of applications, rather than hastily issuing dubious patents, re-examining and rejecting them, and further re-examining and validating a limited number of claims.

To reduce the number of patents filed, a severe penalty has to be levied on a patent found to be invalid on re-examination; when such a patent is asserted in a case. If a company faces the prospect of a $10bn penalty, compared to a $1 bn damages compensation; it will think a 100 times before using the patent in a court. Additionally, it will also reduce the need and motivation to apply for a patent in the first place, thus allowing the PTO a lot of time for review and examination of a vastly reduced number of applications, which are bound to be genuine, rather than frivolous.

Re:My input on software patents...

[ljw1004]

All software is, by definition, math. And all math, by definition, is not patentable.

Which definition? I've not seen one. Can you show me a precisely worded definition of software that justifies your claim?

Re:My input on software patents...

[Anonymous Coward]

The difference is that a software patent would cover ALL ways of creating Salicylaldehyde. The way chemical patents are done is the specific process including pressures, temperatures and catalysts are part of the patent. Make a new way of Salicylaldehyde by chilling with a different catalyst? Get a new patent.

Re:My input on software patents...

[jkrise]

You cannot patent the idea of "sorting" but you can patent a sorting algorithm.

A sorting algorithm is still a computational idea. It does not result in any physical transformation.

A sorting algorithm could be used at a post office to sort letters. So let's say a patentee gets one on a sorting algorithm, which is very efficient.

Now say, this same algorithm is used to sort out rotten apples from a basket. Now, the patentee could sue the rotten-apples-sorter for violating his sorting algorithm patent.

The fact is that the patentee saw only one limited use for his algorithm, Implementation of the algorithm for totally unrelated tasks now becomes violative. This is not desirable.
---------------
One of the recently invalidated Apple patents referred to dragging a finger at less than 18 deg over a touch surface; being interpreted as a horizontal gesture. Such a gesture could be used and interpreted for hundreds of resulting actions, completely different to the use cases for which Apple thought of. Should the very act of a horizontal swipe on a touchscreen be restricted to Apple?

Re:My input on software patents...

[Anonymous Coward]

I disagree with your input, because math occurs in the human brain, but software is implemented on a machine, thus making it an objective invention, not merely an idea, and hence patentable IMHO.

Re:My input on software patents...

[presidenteloco]

Why is "sorting" a concept or idea, but "quick sorting" (that is "sorting by doing this then this and this") not a concept or idea?

It's just a more specific concept or idea.

You are on thin philosophical ice.

Re:My input on software patents...

[rjstanford]

Worse, a software patent can cover the idea of creating Salicylaldehyde, without anyone ever needing to have done so.

Re:My input on software patents...

[Theaetetus]

Input -----> Process -------> Output

100000 applications for software patents -----------> USPTO ------------> All rejected.

All software is, by definition, math. And all math, by definition, is not patentable.

But all "software patents" are not necessarily just patenting software. In this case, the title is not the definition, so the fact that software is by definition unpatentable is irrelevant. What we call "software patents" are actually "software-executed-on-hardware patents" and hardware is not, by definition, not patentable.

Re:My input on software patents...

[Anonymous Coward]

You should clarify this, as there are always a million bad analogies that come from this argument.

Software isn't pure math. It's applied math. A direct definition would be that software is a mathematical proof of an electro-mechanical system. I'm going to repeat that, and I want it to stick in your head. Software is a mathematical proof of an electro-mechanical system.

Why is that so significant? Because you can't patent math, but you can patent electro-mechanical systems. Chances are that if you've written some software, the hardware it runs on is already patented. If you're using an x86-based "IBM compatible" personal computer, then that's the electro-mechanical system, and it is most certainly patented. Probably in pieces by a dozen or more companies.

Your software is not covered by a patent for your software. It's merely an application of mathematics to an already-patented hardware device. If someone sues you for patent violation, state that you are merely an end user of the patented device that is capable of doing what their supposed patent covers. The patent covering the functionality is Intel's patent on the CPU and NB/SB, IBM's patent on the BIOS, Samsung's patent on the memory, Asustek's patent on the motherboard, Seagate's patent on the disk drive, and/or Nvidia's patent on the GPU. It's not your problem, and they can go find the "real patent violator" if they want. Just point this technicality out to the court, and let the court know that their time is being wasted by this patent troll. Then direct everyone to Intel's legal department. Intel's legal department is not going to be amused by some troll coming along to challenge one of the many patents they hold on their x86-family technologies. Nor will it end well for anyone attempting to assert control by patent over any capability of a general purpose CPU.

This is why software is unpatentable. It's not just math. It's math that can only function when based on other patentable devices, and thus would not exist in an entirely unpatentable state in any condition, ever.

Re:My input on software patents...

[Anonymous Coward]

Hardware these days (FPGA, ASIC, SoC) also written in VHDL/Verilog languages, so they shouldn't be patents too, right?

Re:My input on software patents...

[slinches]

The problem with this argument is that the same reasoning that defines software as mathematics also defines *all* patentable subject matter as mathematics.

I don't think this is true at all.

Suppose two inventors decide to solve the problem of lifting heavy objects. The first devises a system of a ramp and cart with wheels to roll the object up to the desired height. The second uses a set of pulleys to achieve the same goal. These two inventors wouldn't infringe on the others' patent even though they are mathematically identical concepts (i.e. applying mechanical advantage).

Re:My input on software patents...

[DMUTPeregrine]

The SCOTUS has in the past declared that products of nature, including mathematics, are unpatentable. That's the second definition.
The first definition is actually not a definition, it's implied by the Church-Turing thesis. While widely accepted that isn't (and can't be) proven, but we've never yet found a counterexample.
A short, informal proof:
A Turing machine can perform any computation that could be performed by a Bounded Storage Machine, such as any modern computer.
The set of computations that can be performed by a Turing machine is equivalent to that of the Lambda Calculus.
The Lambda calculus is a form of mathematics.
Therefore, the Lambda calculus can perform any computation that a computer can perform.
Since all software is a series of computations, all software can be transformed into the Lambda Calculus.
Therefore, all software is equivalent to mathematics.

Keep It Simple Stupid

[presidenteloco]

No software or algorithm patents.

If you really want to keep something exclusive, keep it hidden, call it a trade secret, and sue anyone who leaks it.
Unless you are Einstein, someone else will think of it fairly soon anyway, because it's obvious to those at the leading edge of whateever specialty, so keeping it a secret may be bad social form but is not really harmful.

Re:Keep It Simple Stupid

[Maximum Prophet]

Also, you have to build it before the patent will come.

This, "Let's patent a crazy idea about a brain interface that reads your every thought", without even a plan to build a prototype is nonsense.

Re:Keep It Simple Stupid

[Dracos]

Also, you have to build it before the patent will come.

Not anymore. Last year US patent law was changed from "first to invent" to "first to file", meaning if you can write a patent application, you can get a patent for something you haven't invented yet.

Re:Keep It Simple Stupid

[SteveFoerster]

Right, he was making a suggestion, not lamenting about the current state of things.

Re:Keep It Simple Stupid

[tlhIngan]

No software or algorithm patents.

The problem is it isn't as simple. If we roll back 50 years, it was relatively simple - written works were copyrighted (typically), hardware things were patented.

Software changed all that. All of a sudden you have written works doing hardware things. So do you copyright them, or patent them? Or both?

Let's ignore pure software first, and let's go with say a photocopier. In the past, they were hugely mechanical contraptions where a drum was charged, then a scanning head sent light down some complex optical path to hit the drum and paper was fed.

These days, it's software controlled - instead of mechanical gears timing it out on old "analog" copiers, you have a little microcontroller sequencing stuff. What would its software state be? A patent as part of the whole copier engine? Copyright the software part, patent the hardware (including the use of a microcontroller)? And nowadays, pure digital copiers (basically a scanner and printer in one) have replaced the complex optical path with wires. What happens now?

Or say an engine controller - you come up with a way to save fuel that relies on trickery in software in cooperation with hardware. Do you copyright the software, patent the hardware (which may be just a combination of existing parts, but the software adds the novelty)? Or do you patent the entire thing, including the ECU software (that helps save fuel)?

And what if you invent some new way of making a CPU faster, but do it in an FPGA? Is the RTL only copyrightable? Or patented? After all, it can be hardware (silicon) in the end, or it can remain as software implemented in VHDL or verilog.

Then you take these examples, and slowly extend them to using a general purpose computing platform and you end up right back at the same problem - where do you draw the line?

Modern things are powered by software, but do we rule that anything we invent using software to drive hardware in new and novel ways is unpatentable? What if a better software-controlled mousetrap was invented?

Even better - what if we were to implement something that was done in software in hardware? is THAT now patentable because it's pure hardware?

And therein lies the problem - software is a very different beast than what we had before. It's written, but it is often used to glue together hardware that would otherwise take lots more hardware or be impractically big.

Heck, Steve Wozniak saw this transition - back at Atari, they used to do games with discrete logic - building the entire game logic in hardware (including all the hairy warts of trying to debug the mess). Then the microprocessor came along and simplified a lot of the logic - instead of having to have hundreds of discrete TTL chips, you have just a handful, and the thing that replaces those hundreds of chips is just pure bits.

Re:Keep It Simple Stupid

[PoolOfThought]

I don't think you understand what that means (first to invent VS first to file), and I think you're turning it in to something it's not. In reality you could always (and still can) patent something you "haven't invented yet" if by "invented" you define it as "having built". Legally, inventing something is coming up with an idea and putting it all on paper in legalese with pretty drawings and what not. That's "inventing" as far as the USPTO is concerned. And, they're right, but they've kind of bastardized the word (or someone has somewhere along the way). Everything else is just the child's play portion of actually "putting things together" (constructing) following the instruction presented by the inventor in the patent. You don't have to actually build something to invent it or to patent it... with one exception. A perpetual motion machine requires a prototype to be patented.

The change from first to invent to first to file just means that you do not retain rights to your invention by simply inventing it first. If you invent some widget in 2013 and then your neighbor sees what you've done and files a patent for it in 2015 they will get all rights to that IP... because they were the first to file. It used to be that being the first to invent was worth something, but that has now changed.

Finally, I think that Maximum Prophet was suggesting, as an improvement to the current patent system, that one should not be allowed to patent theoretical items, but rather only items that they've actually built.

Re:Keep It Simple Stupid

[rmstar]

What if a better software-controlled mousetrap was invented?

Then it wouldn't be possible to patent that. I wouldn't mind.

Re:Keep It Simple Stupid

[bzipitidoo]

I think these questions are wide of the mark. So much that used to require mechanical devices of considerable complexity can now be done entirely with software. A good example is a clock. A grandfather clock is a ridiculously archaic, hugely space wasting mechanical device of limited portability prone to frequent breakdowns and in need of regular attention. One of the big problems of navigation up to the 18th century was how to keep accurate time on ship, so you could figure out what longitude you were at. Big pendulums don't work on rocking, moving platforms such as ships. Now we can easily keep time with quartz crystals, and have our computers display the time any way we like. Clocks were obviously patentable and frequently were patented. Should they still be patentable, today?

But as I said, I think that's the wrong sort of question. It's like the classic question of good vs evil. You should obviously choose the good side, and a superficial look instantly points to patents as the good side. Upon reflection it's not so clear that what appears to be the good side really is good. Patents have somehow attained the status of being thought the "good" side, while patent infringers are "evil" pirates who "steal" ideas. We are being asked to comment on where this line between good and evil should be redrawn, as it has obviously been moved too far towards lumping a lot of good activity in with the evil side. Faust decided against both sides. And that's what we should do. Don't play this game of redrawing the lines. The parties running the show are corrupt and biased. They wish to perpetuate their ways, which is a conflict of interest. Do as Faust did, and throw the whole damn system out!

We need a "default is yes" system, not a "default is no" system like we have now. Use whatever ideas you like without fear of having to pay anyone anything, and sort out who deserves what later in a positive, non punitive manner. You do not pay to use ideas, instead, we would have various organizations whose job is to do that. No more hunts for patents and their holders, no more refusal to deal at any price, no more exclusive rights, no more monopolies!

Re:Keep It Simple Stupid

[Theaetetus]

No software or algorithm patents.

If you really want to keep something exclusive, keep it hidden, call it a trade secret, and sue anyone who leaks it. Unless you are Einstein, someone else will think of it fairly soon anyway, because it's obvious to those at the leading edge of whateever specialty, so keeping it a secret may be bad social form but is not really harmful.

Except that, because under your system there are "no software or algorithm patents"*, then that person will also keep it hidden and call it a trade secret and sue anyone who leaks it. And so will the next person, and the next person, and the next person, and the idea will never become part of the public domain because trade secrets last forever. So, you just slowed innovation to a crawl, because (i) every person has to reinvent the wheel because every other person is keeping it secret, eliminating the ability to build on others' inventions, and (ii) ideas that were protected are not falling into the public domain when they expire.

*There are no software or algorithm patents right now. Software is currently not patentable. Software-executed-on-a-machine is patentable, and it's what we typically refer to when we talk about "software patents", but it's different. The pure algorithm is still "just math" and is unpatentable.

More charades.

[ReallyEvilCanine]

The USPTO was "asking for input" since before software patents were allowed some 30 years ago. They ignored it then ("already covered by copyright") as they will continue to do because the then-outrageous and intractable idea of USPTO-as-Service-Provider under Reagan has become the de facto standard rather than the egregious outlier. Fallacy of the Middle Ground.

NYC Feb 27 - I'll try to make it - Slashdot meet?

[MetalliQaZ]

Perhaps Slashdotters in the areas around these meetings would like to get together to plan, practice, and eventually travel to these meetings? Beers/Sodas after the meetings are suggested.

show us one good software patent

[johntromp]

Has the USPTO presented specific examples of what they consider to be excellent software patents? That should help focus discussion...

Re:show us one good software patent

[thereitis]

How about the MP3 audio encoding format? It revolutionized digital music distribution.

Re:show us one good software patent

[VortexCortex]

Your claim is baseless. "It revolutionized digital music distribution", on what do you base this? I put it to you that it was the ability to transmit data digitally and world wide that revolutionized digital music distribution. Any form of Fast Fourier Transform based compression would have served the same, it was not MP3 itself that drove this revolution. In fact, I'll put it to you that the MP3 format's ridiculous exclusion of any lossless data encoding is designed to ensure that anyone who uses the format be subject to patent licensing, and has thus hindered not only independent software production but has also degraded the quality of music world wide.

Re:show us one good software patent

[Halo1]

There is no "the MP3 audio encoding format" patent. MP3 is (was) covered by several patents. At least one of its base patents is however ridiculously broad. I haven't looked at the others, but it would surprise me if they would be that much more specific or better.

Re:show us one good software patent

[thereitis]

I base it on the proliferation and popularity of mp3 sharing sites (Napster, etc.). You didn't see .wav (or any other audio format) sharing sites before mp3 came around even though .wav files were around for as long as Windows was, and other formats before it. Hardly 'baseless' as you say.

I'm not saying I agree with how the mp3 format was licensed, but it is indeed a technology worthy of mention in a discussion about software patents.

Re:show us one good software patent

[Anonymous Coward]

How about the MP3 audio encoding format? It revolutionized digital music distribution.

It did... until Claude Shannon came along and sued the sh*t out of them for using data compression. After all, he invented it.

Re:show us one good software patent

[mdmkolbe]

I oppose software patents, but RSA was a socially useful algorithm that was patented. I'm not sure it being patented was socially useful, but that is a much harder point to argue so I'm not sure your line of argument will get you anywhere.

Re:show us one good software patent

[Joe U]

You didn't see .wav (or any other audio format) sharing sites before mp3 came around even though .wav files were around for as long as Windows was, and other formats before it.
Hardly 'baseless' as you say.

What Internet were you visiting?

There was music sharing using WAV and others for several years before MP3, the problem was bandwidth and storage, so it was unpopular. Running LHA on a WAV didn't do much, but people did it anyway.

how about...?

[Anonymous Coward]

I'd like to suggest... doing SOMETHING besides posting /. comments... you know, like participating in this partneship.
crazy aw?!

Questionable summary

[Grond]

Software developers are the folks most immediately and directly affected by the software patents the USPTO issues, and it's getting to the point that no one can code anything without potentially getting sued.

Really? How many software developers (not companies, individual developers) have been sued for patent infringement? How often do software developers make the independent decision to design around a software patent, as opposed to being told by management to do so? The fact is that individual developers are actually some of the folks least immediately or directly affected by software patents. They don't get sued, and software patents largely don't affect their day to day work.

Bear in mind that there are perhaps a 1000 patent infringement suits filed per year that involve claims at least tangentially related to software. Many of them feature the same defendants over and over again, and many of the defendants are not primarily software companies. Two years ago there were over 56,000 software companies listed on LinkedIn, and I imagine there are more now. That's a very rough estimate, but the point is that a statement like "no one can code anything without potentially getting sued" is true only in the loosest sense. In fact most software companies will never be sued for patent infringement.

Slashdot has been reporting on the coming software patent apocalypse for over a decade now, and it still has yet to materialize. Software and hardware development continue at an incredible pace rarely seen in history or in any other industry. The software and hardware industries continue to grow. And the United States, with all of its software patents and related litigation, continues to be a leader in these industries.

There are problems with the patent system, and software patents are not immune to those problems. It may even be true (although essentially impossible to prove) that software patents are a net drain on the industry. But it is clearly not the case that software patents are crippling developers or causing everyone to get sued.

Re:Questionable summary

[Anonymous Coward]

Regardless of any pros or cons, it is clearly the case that software patents are illegal, since software is mathematics.
If Congress wants them to be legal, they have to write a statute to do so.
In the meantime, USPTO is breaking the law.

Re:Questionable summary

[Grond]

software patents are illegal, since software is mathematics.

Good thing "software patents" don't actually claim software per se but rather methods of programming or using physical computing devices.

Consider this highly simplified claim: "A method for displaying a line on a computer screen, comprising using Bresenham's line algorithm to draw the line on the computer screen." Suppose that the patent applicant was Bresenham himself and the method was new.

This claim does not claim mathematics. The algorithm itself can, of course, be reduced to a proof, per the Curry-Howard correspondence. But "a computer screen" is neither software nor mathematics. No amount of thinking about mathematics well ever result in a line appearing on a computer screen. You need hardware to do that. And since the computer screen is an essential element of the claim, mathematics alone (such as the aforementioned proof) will never infringe it.

If Congress wants them to be legal, they have to write a statute to do so.

What in the patent statute prohibits software patents? How is new, useful, and nonobvious software not an improvement of a machine (namely a computer), per 101? How is new, useful, and nonobvious software not a a new use of a known machine, per 100 and 101? It seems to me that the plain language of the patent statute clearly encompasses software, and that it is the judicially-invented "abstract idea" exception that potentially prohibits them.

Re:Questionable summary

[Anonymous Coward]

The only reason I haven't gone out and started my own company is the fear of patent suits. If I create a web application, I don't want to grab 3% of the market my application serves, catch the eye of the market leader, then be sued into oblivion. Even if the lawsuit is totally bogus, I don't want to spend time or energy dealing with it, and more likely than not the lawyer fees and court costs alone would bankrupt me.

Software patents are like guns. Relatively few people shoot a gun in self-defense, but knowing that a person may be carrying a gun deters a lot of criminals, and that effect can never be quantified. There may be only 1000 patent suits a year, but how many (tens/hundreds of) thousands of developers choose not to start their own company because of this threat?

Re:Questionable summary

[Anonymous Coward]

http://en.swpat.org/wiki/NetApp's_filesystem_patents

Re:Questionable summary

[Anonymous Coward]

If the computer screen is an essential element, then I don't need a patent license for my free software that draws lines using Bresenham's algorithm, because I'm not using Bresenham's patented computer screen!
You can't have it both ways. If a physical object that I'm not selling or giving away is essential to the patent, then my free software is not covered by the patent.
If a physical object is not essential, then it's not patentable.
Either way, I get to ignore the "ownership" of algorithms.

Re:Questionable summary

[Grond]

If the computer screen is an essential element, then I don't need a patent license for my free software that draws lines using Bresenham's algorithm, because I'm not using Bresenham's patented computer screen!

The patent doesn't claim that the screen is itself new or patented. The patent claims the method of displaying a line on any computer screen. It's no different than a patent on, say, a method of catching mice using a bucket of water, a ramp, and a piece of bait dangled above the bucket. It doesn't matter where you get the bucket, the ramp, or the bait. The patent covers the method of using these pre-existing objects together to catch mice.

You can't have it both ways. If a physical object that I'm not selling or giving away is essential to the patent, then my free software is not covered by the patent.

I'm not trying to have it both ways. This is a long-settled area of the law, codified in the statute. The end users would be directly infringing the patent, and you would likely be liable for indirect infringement. Imagine a patented mechanical device that is held together with screws. If someone sells all of the parts, minus the screws, plus instructions on how to put it together and where to buy the screws, that's indirect infringement. In this hypothetical you're distributing the software knowing that end users will use it in an infringing manner with their computer screens (which, again, could be any kind of computer screen).

Re:Questionable summary

[Anonymous Coward]

"No amount of thinking about mathematics WELL ever result"

WTF? Let me guess, you're an American.

Will, well, what's the difference?
Than, that, then - they're all the same, aren't they!
They're, their, there, all the same meaning, right?
Your, you're, exactly the same...

Oh, and the latest stupidity I've seen coming from AMERICANS is using 'sense' instead of 'since'! Unbelievable. Don't you actually understand what the words MEAN? Do you just type in whatever sounds sort of similar?

Re:Questionable summary

[VortexCortex]

Really? How many software developers (not companies, individual developers) have been sued for patent infringement?

Why make this distinction? Independent software devs, like "Notch" of Mojang, have their companies sued as soon as they achieve any success; And this is for a bullshit game. In business software it's even worse. Here: When Patents Attack - This American Life. The fucking apocalypse is NOW you fool.

. It may even be true (although essentially impossible to prove) that software patents are a net drain on the industry. But it is clearly not the case that software patents are crippling developers or causing everyone to get sued.

So, wait, what you're saying is that it's "essentially impossible to prove that software patents" are beneficial to the software industry. So, PROVE to me why we should have these damn laws if we can't prove they're beneficial!? You're suggesting we continue operating under an unproven and untested hypothesis?! FUCK YOU, you're a moron!

Re:Questionable summary

[Halo1]

Good thing "software patents" don't actually claim software per se but rather methods of programming or using physical computing devices.

Yes, because that makes all the difference. After all, almost nobody would ever think of running software on a computer. Instead, they generally prefer to interpret it in their head, or execute it using a pen and paper.

There is no practical limitation by claiming software as executed by a computer vs software per se, other than possibly in terms of direct vs contributory infringement (and even that has been covered by claiming software stored on a carrier). Hence, for all practical intents and purposes, they are in fact claiming software per se.

It's like arguing that mental processes as such should not be patentable, but mental processes performed using pen and paper or using a chemical device colloquially known as "the human brain" should be claimable, because then they are no longer abstract and are actually performed using physical, real world means and hence improvements can result in better resource usage.

Re:Questionable summary

[Anonymous Coward]

>How is new, useful, and nonobvious software not an improvement of a machine (namely a computer), per 101?
It's not part of the machine, anymore than a great CD is an improvement of your car stereo.

>How is new, useful, and nonobvious software not a a new use of a known machine, per 100 and 101?
It's not a new use. The machine is doing what it did before - executing the instructions given to it.

If algorithms are non-patentable, that wipes out patentability of all of software - it is just that lawyers have never realized that. I don't see any degree of intellectual dancing that can support software patents without allowing patents on algorithms.

DSB

Re:Questionable summary

[bzipitidoo]

knowing that end users will use it in an infringing manner

I have difficulty with this notion that a mere user can infringe. You don't quite say a user can be an infringer, but it's just a small step further from what you do say, and it's a step that has been taken and not immediately pushed back. That's what led to SCO demanding those $699 license fees from end users, and actually collecting a few times. I never felt that was proper. And I have not heard that those license fees were returned.

It is the producer who commits infringement, not a user. How is a user supposed to know whether a device or program infringes a patent, without performing a close inspection of it? Or is the user to rely on hearsay? If a particular model of Toyota infringes a patent, do all drivers of that model have to fear a shakedown or a lawsuit from the patent holder? Or repossession of the vehicle? Is merely renting or borrowing that model of car enough to infringe? Of course not!

Re:Questionable summary

[metaforest]

Ok... this is is freaking obvious... (IANAPA) however...

Able is a clever guy. He patents a new process for smelting smelt. He does not license this method, but uses it in his own fish processing factory.

Barney is a clever guy too. He processes fish in his own cannery. He sees that Able has patented a new method for smelting smelt. He reads the patent, and realizes that it is more efficient than his method of smelting smelt. He builds a machine based on the published patent and now his smelt smelter is more efficient. He does not sell his implementation either.

Barney has infringed on Able's patent.

Alternative case: EVEN IF Barney had Charley build the smelt smelter and did not know that it infringes on Able's patent he is still liable. The reasoning is that Barney being in the same industry should have known that what Charley built for him might infringe if he had been doing due diligence on Charley's proposal.

This has happened many times over the history of patents in the US and the UK.

   

Go ahead

[Anonymous Coward]

Just realize that anything reasonable will be rejected out-of-hand.

In the guise of compromise, something ostensibly slightly better but really just as bad will be adopted, and things will remain basically the same.

Rich people have to be negatively impacted before things change, and the current state of patent law perfectly fits the needs of the current wealthy industry leaders (yes, they fight each other over patent disputes but always end up with cartel arrangements as a result; all parties in these battles still get the benefit of protecting themselves from small upstarts, which is what they really want).

Horse has bolted

[Joce640k]

they'd like to improve things...

Too late for that, the damage is done. The patents they already issued are enough to destroy the software industry for the next 15 years at least.

Re:Horse has bolted

[Anonymous Coward]

... in the US. Have a nice way down.

Congress makes patent law.

[Anonymous Coward]

USPTO cannot change the law, that is up to congress, the president, and/or the supreme court. They can however change the process (to get a patent) - in particular they can make it more transparent (e.g solicit public input - "crowd-source" the prior-art search).

Um, how about No?

[sl4shd0rk]

http://imgace.com/wp-content/uploads/2012/10/how-about-no.jpg

Arrogance

[Anonymous Coward]

It always amuses me that software developers think they are somehow immune from the rules the rest of the world lives under.

Software patents - we don't care!
Copyrights - we don't care!

I haven't heard a single valid argument for why software is any different than any other discipline.

I can advance several legitimate arguments as to why software patents are a GOOD idea.

For example: you know that awesome startup you wanna create someday by coding some amazing app in your mom's basement? Good luck being successful with that without software patents. Copyrights dont really cover anything other than literal copying. There's a very good reason some large software companies are very anti-patent. It's so they can monitor the market for disruptive ideas and then copy them and use their market power to dominate the market.

It's just crazy how much software engineers cry about software patents. No other industry whines quite like computer programmers.

I've also never seen a group quite so misinformed about patents as the slashdot crowd. It seems that every other day there is some anti-patent article about how Megalith corporation has now patented binary numbers. This conclusion is usually based on reading the title of the patent, and in some cases the abstract. Neither of which by the way have any legal significance. Read the friggin claims people! I know its hard, and requires more than 10 seconds of thought, but you look foolish and stupid doing that.

Oh and your argument that software patents are evil because old stuff is being patented also is not an argument to outlaw software patents, but is an argument for improving the examination of software patents, because by law a software patent must be non-obvious and be novel.

Re:Arrogance

[0123456]

For example: you know that awesome startup you wanna create someday by coding some amazing app in your mom's basement? Good luck being successful with that without software patents.

Good luck coding that amazing app with software patents, because the patent trolls will take any money you make.

Hardware patents are moderately justifiable since building a new jet engine costs many millions of dollars and I can't violate your patents in my basement for $500. Software patents are simply retarded, since anyone who downloads a free compiler can violate them, probably without even realising.

Re:Arrogance

[fritsd]

I haven't heard a single valid argument for why software is any different than any other discipline.

Really? Oh.

Here are a whole bunch of them, each one carefully reasoned out and commented on:
http://www.groklaw.net/staticpages/index.php?page=Patents2

"Software Patents
Here are some of the articles Groklaw has published on software patents, particularly in support of the claim that software is mathematics and hence unpatentable subject matter."

Re:Arrogance

[Steauengeglase]

"No other industry whines quite like computer programmers."

So Dashiell Hammett's estate should have been allowed a patent for the crime novel?

Re:Arrogance

[Anonymous Coward]

Yet, you still haven't explained how exactly this is different from any other industry? Method patents cover methods of using something - therefore you could violate a hardware patent just by using it. Just because software is easy to produce and sometimes free doesn't mean that ALL software is easy to produce and free.

As for trolls, that's a business risk. Same risk as any other business faces from frivilous lawsuits. How many slip and fall cases have been paid out that were bogus?

Re:Arrogance

[steve79]

Depends, is the novel novel?

Re:Arrogance

[Anonymous Coward]

Software development is very similar to cooking in many ways, and it appears to be very difficult to get a patent on a recipe.
Software patents should have to pass the same test. At moment, anyone skilled in the trade will be violating any number of patents by creating the most simple program. It is the same as not allowing someone to patent "a baked good with nuts, baked in an wood-fire-oven", and then later allowing "a baked good with nuts, baked in a convection oven".

Re:Arrogance

[Anonymous Coward]

If you'd like to pick one, we can discuss why I disagree. Ultimately, my argument boils down to the fact that the statute reads: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof" Software implements a new use for a computer. It is a practical implementation of an algorithm. If you suddenly want to ban practical implementations of otherwise unpatentable theories and concepts, then where do we draw the line? Sorry Ford, you can't get get a patent on that new spring clutch assembly because it's just an application of the laws of nature, thermodynamics, mettalurgical principles and all sorts of well known scientific principles.

Re:Arrogance

[Theaetetus]

I haven't heard a single valid argument for why software is any different than any other discipline.

Really? Oh. Here are a whole bunch of them, each one carefully reasoned out and commented on: http://www.groklaw.net/staticpages/index.php?page=Patents2

"Software Patents Here are some of the articles Groklaw has published on software patents, particularly in support of the claim that software is mathematics and hence unpatentable subject matter."

But those papers fail to address the actual patents at issue. Contrary to Slashdot and Groklaw belief, "software patents" are not patents on software. Software is unpatentable. However, you can patent a software-executed-by-hardware, or a machine that executes software, neither of which are reducible to mathematics via Curry-Howard, or at least, no more so than a car or an aeroplane.

Re:Arrogance

[Steauengeglase]

No, but the ending was non-obvious.

Re:Arrogance

[greg1104]

If you suddenly want to ban practical implementations of otherwise unpatentable theories and concepts, then where do we draw the line?

At the point it crossed into software. The test is simple. If it is possible to code it, that is math, and therefore not patentable. Release the source code to any software you're claiming as part of the patent. If the patent isn't interesting anymore when that's done...you have failed the obviousness test and shouldn't get a patent anyway.

Re:Arrogance

[greg1104]

The latest paper uses anti-lock braking as an example. You can't get much more car analogy than that.

Re:Arrogance

[Anonymous Coward]

You don't understand. The same principle you are relying on: That math isn't patentable, comes from the concept that fundamental principles, which include math, but also include physical principles such as the laws of nature, are not patentable.

To implement computer programs into a computer is a practical use for a math formula or algorithm. But implementing a new mechanical gizmo is also a practical use of the laws of physics (which are also unpatentable). If you are saying that practical implementations of a fundamental math equation are unpatentable then you also have to accept that practical implementations of the laws of physics, the principles of metallurgy, etc... are also unpatentable. You cannot split the baby. In order to have ANY patent system, you have to allow for patenting practical applications of fundamental principles. For example, a mouse trap can be seen as simply the result of the laws of physics and the principles and properties of the components used to construct it. It is a practical implementation using a springs release of tension. However, under your theory, a new mousetrap would not be patentable. Nor would anything else.

Re:Arrogance

[greg1104]

Was your goal to show that no patents should be granted? That's the only place to go from the "everything in the universe can be reduced to math" line of thinking. I'm fine with that outcome, too. Just stay out of software innovation please.

Re:Arrogance

[bzipitidoo]

You're looking at it wrong. You're quibbling over where the line should be drawn, when there shouldn't be a line at all.

The problem is this attitude that you should know better than to violate a patent, ignorance is no excuse. Naturally, this is followed by the notion that violators should be punished. That's all very well, except for all kinds of issues. Has it occurred to you to question the patentability of the ideas that were granted patents? Most of all, the ideal of how the patent system should work is completely impractical. In this ideal, before you do anything, you're supposed to perform a search to make sure you aren't violating any patents. That in itself is completely backwards-- you should have no fear of unintentionally violating any patents because they are not supposed to be obvious! It shouldn't be necessary to do a patent search at all, because the chance of accidentally infringing should be so low that it likely won't happen. Instead, as we all know, way too many too obvious patents have been granted. Then, when you find patents which cover what you need, and you will, you're supposed to find the owners, if you can, and negotiate with them for a license. If just one can't be found, you can't proceed. If just one says no, which is allowed, you can't proceed. You have to find another way. At this point, you've spent a great deal of time, money, and effort on legal matters, and gotten nowhere towards your real goal. And the outcome was foreordained. The odds of running into a roadblock are nearly 100%. Yet patent proponents seem to seriously expect businesses to operate in this fashion, and base their punishments on this thinking. If only RIM had done a proper patent search, they would have found NTP! But in the real world, no one can afford this kind of effort, and no one does.

The solution? Do a big review and throw out a bunch of patents on the grounds that they are too obvious? That could help, but it's not enough. It doesn't change the problem that patents are still a massive hindrance to business and innovation. No, the real solution is to make patents less of a burden. Removing an entire class of things, such as software, from patentability would help more. But I think even more is needed. Switch to a permissive model. No more exclusivity. Patent holders should not have the right to drag infringers into court, not have the right to say no. Infringement should not be a naughty act. Don't even call it infringement, call it something like "making use of". Then patent holders should be able to merely point out that someone is using an idea they published, and apply to a separate organization for compensation. No more of this harsh punishment. No more vicious, damaging court fights.

Re:Arrogance

[Anonymous Coward]

Software is unpatentable.

Yep, that's why single click and codecs like mp3 aren't patented. Regardless of the implementation. Not.

If it walks like a duck and quacks like a duck then may be it is a duck despite the dizzying amount of self-serving rationalization going on.

Use something like Church-Turing

[onebeaumond]

One implication of the Church-Turing hypothesis is that any algorithm can be "emulated" by an infinite number of other algorithms. So the "patent universe" could be considered an entropic system; where a new algorithm's value drops as other algorithms relentlessly take its place. The time constant currently granted by the USPTO is probably much larger than reality, for most situations (just guessing here).

Software is not of patent-able matter

[3seas]

Of the things universally accepted as not being patentable are:
Physical Phenomenon
Natural Law
Abstract Ideas
and of these three comes Mathematical Algorithms

So what is software? Its all of these!
http://abstractionphysics.net/pmwiki/index.php

Re:Software is not of patent-able matter

[Theaetetus]

Of the things universally accepted as not being patentable are: Physical Phenomenon Natural Law Abstract Ideas and of these three comes Mathematical Algorithms

So what is software? Its all of these!

And software is not actually patentable, contrary to Slashdot belief and complaint. Instead, software that's implemented in a machine is patentable, because a machine is neither a physical phenomenon, natural law, or an abstract idea.

You Paint Yourself with the "Arrogance" Brush

[Press2ToContinue]

"I haven't heard a single valid argument for why software is any different than any other discipline."
Then you haven't been listening.

Re:You Paint Yourself with the "Arrogance" Brush

[Anonymous Coward]

"I haven't heard a single valid argument for why software is any different than any other discipline."
Then you haven't been listening.

Good one. Care to share?

One single developer affected by software patents

[Anonymous Coward]

I'm a single software developer (although I have a company) and I have been pursued on multiple occasions by patent attourneys and wasted a large pile of money on that. I design around patents that are being actively litigated (or have done in the past) regularly because if you don't - you're an idiot. I have also invented software independently that someone else patented later (and tried to license to me.) I believe some inventors need protection, but the implementation and consequences of software patents is so awful, I think software patents should be abolished for the good of the industry. Patents are a minefield and only attourneys benefit.

I fear you are right

[Press2ToContinue]

So sad.

USPTO should data-mine slashdot

[presidenteloco]

to get the software geek perspective on software patents, if they really want it. Enough feedback has already been given, believe me.

They could search for all slashdot articles with "patent" in the title, and throw it into Wordle http://www.wordle.net/ for starters.

Re:USPTO should data-mine slashdot

[steve79]

If they did this they'd get a lot of unhelpful rhetoric.

Software: Patents or Copyright

[gQuigs]

Not both. If you get a patent you have to release the source in the public domain.

From Wikipedia:
A patent ... to an inventor or their assignee for a limited period of time, in exchange for the public disclosure of the invention.

Re:Software: Patents or Copyright

[steve79]

You are incorrect, sir. You do not need to release the source code. This was true back in like the 1980s (or common practice then, anyway). Nobody release code for their software patents these days b/c it is simply not required. You must describe the general algorithm in sufficient detail to enable one of ordinary skill in the art, without undue experimentation.... this is a far cry from source code.

Re:Software: Patents or Copyright

[greg1104]

I didn't take that as a description of fact. I thought it was a suggestion: that people should be granted a patent only if the source code to any software related claims is released. This idea that the UPTO has, that UML or pseudo-code is sufficient, it's garbage in every direction. Useful non-obvious inventions are not produced from a general algorithm. If that's where your secrets are at, then you haven't done anything that should be patentable yet. You've just manipulated some bits, same as moving some numbers around. Correspondingly, if you release the bits, the patent should still be granted and valuable, or not, based on its other merits.

Re:Software: Patents or Copyright

[steve79]

While I don't think full code is all that useful (what if hardware-specific, what compiler, what language, etc. etc. -- if you look @ old patents they have this, and it's really not helpful at all), I do think an actual useful comment /.'ers can make to the USPTO would be to bolster examination of whether the description does include sufficient detail. You could develop that further into an some good feedback... In my 10 years of practice I've *never* seen the USPTO challenge whether there was sufficient disclosure.

USPTO is not a law-making body

[seattle_coder]

Because the USPTO can only make policy and not make law, they cannot do away with software patents. Congress has said software patents are legal. It would take legislation to get rid of them. I personally would love to see software patents go away. But the goal of the effort mentioned in TFA is to "improve the quality" of software patents. Telling the USPTO that software patents need to go away would be a wasted effort. That energy needs to be directed at lawmakers.

Re:USPTO is not a law-making body

[greg1104]

Congress has said software patents are legal.

[citation needed]. When I read "Software or computer programs are not explicitly mentioned in United States patent law on Wikipedia itself, I can't figure out just what you're claiming here. If software was clearly protected or not we wouldn't have Bliski bouncing around in both directions in the courts.

Re:USPTO is not a law-making body

[Theaetetus]

Congress has said software patents are legal.

[citation needed]. When I read "Software or computer programs are not explicitly mentioned in United States patent law on Wikipedia itself, I can't figure out just what you're claiming here. If software was clearly protected or not we wouldn't have Bliski bouncing around in both directions in the courts.

It's a doctrine of statutory construction that, where an influential court such as the Supreme Court has said "this statute means [x]" and Congress later amends the statute but doesn't change that part or add "and not [x]" then Congress has agreed or concurred with the court's interpretation. So, for example, where the Supreme Court has said repeatedly that software that wasn't merely an abstract idea was patentable in Bilski, Diamond, State Street, and other cases, and Congress has amended the Patent Act twice (1999 and again in 2011, plus a few treaties in the interim), then Congress has agreed with the Supreme Court that software patents* are legal.

*Not software alone, but software that's not merely an abstract idea or is otherwise tied to machine.

Software Patent Attorney's Perspective

[steve79]

Most of the comments here echo a prevailing view of most software developers: just ban software patents. A lot of rhetoric, not much in the way of thoughtful analysis.

Consider this: In a few milliseconds, you can search just about every web page that exists in the world, while driving your 55 mpg vehicle to get a magnetic imaging scan @ the hospital, and while waiting there you can use your iPhone to call any other person having a cell phone, in the whole world. All brought to you by innovative software...

But those on these boards don't seem to recognize this -- I think it's a case of a few bad patents spoiling the bunch, frankly. It would be nice to at least have the haters concede some of the good points of software patents. If one can think of none, then the intellectual blinders are on, because without question it is a mixed bag -- there is good, and there is bad that comes w/ time-limited monopolies. A better discussion would focus on the pros and cons and the balance.

Also: is it merely coincidence that the most innovative software companies set up shop in countries where there is the most protection available for software innovations? How many tier 1 software companies exist where there's no protection? (I'm sure there are a few, but the VAST majority of tier 1 software companies are in the USA -- think Google, Apple, MS, Adobe, etc. etc. etc.).

Re:Software Patent Attorney's Perspective

[Anonymous Coward]

Of course, how many of those tier 1 software companies were founded in the USA before software patents were available? All of the ones that you mentioned? I doubt patent protection caused those companies to happen in the USA.

And, since you're a software patent attorney: On an average month I might combine database/data stores, network, computer screens 10 different ways, mostly small, mostly obvious to me.
As a practical matter, about how long and how expensive would it be for you to figure out if each of those is patented? I'm just curious. I expect that the patent search will take longer than the actual coding.

Re:Software Patent Attorney's Perspective

[TemporalBeing]

Most of the comments here echo a prevailing view of most software developers: just ban software patents. A lot of rhetoric, not much in the way of thoughtful analysis.

Consider this: In a few milliseconds, you can search just about every web page that exists in the world, while driving your 55 mpg vehicle to get a magnetic imaging scan @ the hospital, and while waiting there you can use your iPhone to call any other person having a cell phone, in the whole world. All brought to you by innovative software...

But those on these boards don't seem to recognize this -- I think it's a case of a few bad patents spoiling the bunch, frankly. It would be nice to at least have the haters concede some of the good points of software patents. If one can think of none, then the intellectual blinders are on, because without question it is a mixed bag -- there is good, and there is bad that comes w/ time-limited monopolies. A better discussion would focus on the pros and cons and the balance.

Also: is it merely coincidence that the most innovative software companies set up shop in countries where there is the most protection available for software innovations? How many tier 1 software companies exist where there's no protection? (I'm sure there are a few, but the VAST majority of tier 1 software companies are in the USA -- think Google, Apple, MS, Adobe, etc. etc. etc.).

As one person said - show us a good software patent.

Honestly, we're prohibited by our employers from even looking at patents because of the risk of treble damages, and it's not simply the "one rotten apple spoils the bushel". We're simply trying to find the one good apple in the bushel to start with, and as folks who know the technology and how it functions we don't see a usefulness.

Fact of the matter is no software company - not even Microsoft, Apple, Oracle, Adobe, or Google - relies on a software patent to run their business even if they have patents. Nearly all of them admit having them for defensive purposes only because everyone else is doing it; the lone wolf in that might be IBM, but IBM again doesn't rely on them for any of their businesses.

Fact of the matter is that no software developers utilize patents to build new technology. Not only are they (i) prohibited from reading patents to start with, but (ii) the vast majority don't know how to read a patent. Those that have been trained to read a patent typically find them useless any how.

Fact of the matter is that the software business turns over faster than patents can issue. Technology typically turns over between 2 and 5 years, while it takes 6-8 years to get a patent approved. Yes, you have protection during the patent application process, but you also have no guarantee of its validity and people are not going to necessarily license it from you during that time period unless they know it's going to be approved as valid and upheld in court - and...

Fact of the matter is that most patents are not upheld in court - at the very least they are revised with further limits put in place whether by the courts or by USPTO, often with claims getting thrown out entirely. Not a good record. If the tables were turned such that they were good enough that they were passing the courts inspection in the majority of cases people would think twice, but they don't - the vast majority is patents are revised or invalidated.

Fact of the matter is that most of what would qualify as prior art is locked away in companies due to Trade Secret laws as the early software industry relied not on Patents, not on Copyrights, but on Trade Secrets. Even today the proprietary software industry (e.g. Microsoft, Apple, Adobe) relies on Trade Secret law to protect what they do, and relies on Copyright law for what they have to publish to others to support their platforms.

So, please show us one good software patent that would not b

Re:Software Patent Attorney's Perspective

[Anonymous Coward]

Most of the comments here echo a prevailing view of most software developers: just ban software patents. A lot of rhetoric, not much in the way of thoughtful analysis.

Consider this: In a few milliseconds, you can search just about every web page that exists in the world, while driving your 55 mpg vehicle to get a magnetic imaging scan @ the hospital, and while waiting there you can use your iPhone to call any other person having a cell phone, in the whole world. All brought to you by innovative software...

But those on these boards don't seem to recognize this.

Software patents is a nice case study of the effects of patents on a field. It is usually assumed, without any evidence to back it up, that patents will increase the rate of invention. You can make some reasonable-sounding arguments for this: "Monopoly on an invention makes it more profitable to be an inventor, motivating people to invent more often". But you can also make reasonable-sounding arguments the other way: "Monopoly serves to lock down future invention by preventing others from accessing new technology", or "The ideas behind most inventions come spontaneously, the patent is just after-the-fact rent-seeking behavior". To find out what the actual effect of patents is, empirical data is needed. Compare the rate of invention in a field before and after patents are introduced to it. If society should accept the burden of monoply, this shouls be justified by a significant increase in the rate of invention after patents start being granted. To my knowledge, this has not been observed in any field covered by patents, least of all software. See this book for details: http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm

Do you have any evidence the contrary?

Re:Software Patent Attorney's Perspective

[Anonymous Coward]

I find your logic to be disingenuous. The software that enables all the wonderful things you describe was built by or directly on all of the advancements made without the supposed benefits of software patents. This is more an argument why software patents are NOT needed.

The fallout of software patents are just now being truly felt.

This is just one big sad joke.

Re:Software Patent Attorney's Perspective

[steve79]

I'm not sure what you mean by a "good" software patent. There's obviously been a number of software patents that have been upheld by the Federal Circuit as being valid and infringed. There are others that are close calls. The claim below was just ruled valid and infringed at a lower court... (Carnegie Mellon v. Marvel). Why should the underlying invention there not be subject to protection if it if novel and unobvious?

(from PatentlyO.com):

The asserted patent claims are basically signal processing logic algorithms for determining the value of items coming from a computer memory signal. This is necessary because the "0" and "1" that we normally talk about for binary digital signals is not actually accurate. In particular, the invention indicates that you should apply a "signal dependent" function to calculate the value as a way to overcome noise in the signal. Apparently a key distinguishing factor from the prior art is that the decoding functions used are "selected from a set of signal-dependent functions." The asserted claims do not identify the particular functions used, only that functions are used.

The two infringing claims are as follows:

Claim 4 of US Patent 6,201,839:

A method of determining branch metric values for branches of a trellis for a Viterbi-like detector, comprising:

selecting a branch metric function for each of the branches at a certain time index from a set of signal-dependent branch metric functions; and applying each of said selected functions to a plurality of signal samples to determine the metric value corresponding to the branch for which the applied branch metric function was selected, wherein each sample corresponds to a different sampling time instant.

Re:Software Patent Attorney's Perspective

[steve79]

Or, one could ask if there is a positive correlation between those countries having strong software protection laws and the number of people employed by the software industry. What you'd find is there is a very high correlation, I think. Places like Europe, where software innovations are difficult to protect, hare a desert wasteland of software innovation. Sure, a rouge developer might do something cool now and then, but the vast majority of companies are only going to invest in a technology if they know they can monetize it, and this usually means by excluding others. Highly difficult in Europe; Not so difficult in USA.

Re:Software Patent Attorney's Perspective

[steve79]

>> The software that enables all the wonderful things you describe was built by or directly on all of the advancements made without the supposed benefits of software patents.

This is one theory, but let's explore it a bit further. Obviously it is difficult to prove one way or another. Certainly there must be a population of software innovations that would exist even without the patent system. But there's probably another group that wouldn't exist, also. If you were a software company sitting on a new compression algorithm that will change the delivery of video content, would you be more inclined to invest further in the technology knowing you had some patents on it? It's not too hard to conclude that certainly you would... there are countless other examples that happen every day of companies allocating resources to software development *because* they know if the ideas are novel and unobvious, they might be protected. Investment is what drives a lot of the innovation. Ask Google, which started with a Stanford patent.

So, what you're really likely saying is the universe of innovation that happens *because* of the patent system does not outweigh the innovation that would happen anyway or the innovation that is stifled. This is an interesting argument, but not at all unique to software inventions. If we as a society are to protect innovative ideas, that these ideas are embodied in software should not exclude them (in my mind, anyway).

Re:Software Patent Attorney's Perspective

[TemporalBeing]

I'm not sure what you mean by a "good" software patent. There's obviously been a number of software patents that have been upheld by the Federal Circuit as being valid and infringed. There are others that are close calls. The claim below was just ruled valid and infringed at a lower court... (Carnegie Mellon v. Marvel). Why should the underlying invention there not be subject to protection if it if novel and unobvious?

How does novel and non-obvious get beyond abstract ideas, or merely recitation of mathematical formula? It's already been ruled that merely implementing a mathematical formula - e.g. adding 1+1 to get 2 - does not quality for a patent. Something novel and non-obvious must be done with that formula that in and of itself is also not recitation of another mathematical formula - e.g. f(x) = x+x, g(x) = f(x) * f(x+1). E=mc^2 does not qualify for patent protection, nor does calculating using a computer.

(from PatentlyO.com):

The asserted patent claims are basically signal processing logic algorithms for determining the value of items coming from a computer memory signal. This is necessary because the "0" and "1" that we normally talk about for binary digital signals is not actually accurate. In particular, the invention indicates that you should apply a "signal dependent" function to calculate the value as a way to overcome noise in the signal. Apparently a key distinguishing factor from the prior art is that the decoding functions used are "selected from a set of signal-dependent functions." The asserted claims do not identify the particular functions used, only that functions are used.

The two infringing claims are as follows:

Claim 4 of US Patent 6,201,839:

A method of determining branch metric values for branches of a trellis for a Viterbi-like detector, comprising:

selecting a branch metric function for each of the branches at a certain time index from a set of signal-dependent branch metric functions; and applying each of said selected functions to a plurality of signal samples to determine the metric value corresponding to the branch for which the applied branch metric function was selected, wherein each sample corresponds to a different sampling time instant.

Which courts? If you notice in CLS v. Alice the Federal Circuit court upheld a patent the lower court said is invalid re:Bilski, and I've had one patent lawyer tell me that the Federal Circuit ruling is basically in direct conflict with re:Bilski. The Federal Circuit is very friendly towards patent owners right now, and upholding a lot of patents - even blatently abstract patents - that should not have been granted.

Please also note that I mentioned that claims do not usually stand up to USPTO review either, and TFA is about the USPTO trying to make sense of software patents in light of SCOTUS and the conflictions being generated out of the Federal Circuit.

To look at what you are listing - it has been known since the dawn of computers that a signal does not stick at the two voltages selected in the analog circuit for determining what 0 means and what 1 means - typically ~0.0v and ~0.5v, though some use ~0.0v and ~0.33v too. So any patent that claims to regulate that would be have computers since the 1940's as prior art. So again, even though it was upheld is it truly valid, novel, or non-obvious? (And BTW I'm not even an EE and know that.)

Re:Software Patent Attorney's Perspective

[Anonymous Coward]

"Sucking blood is good," said the vampire.

Re:Software Patent Attorney's Perspective

[bzipitidoo]

As has been said before, correlation is not causation.

Is Europe such a wasteland of software innovation? I don't uncritically accept that proposition. How do you measure that? I hope you aren't using number of patents granted as a measure, as it should be obvious that will very badly skew the results towards the US.

I also don't buy the idea that excluding others is the way to profit. Sure, it profits the company that is granted an exclusion, but is this to the profit of the public as a whole? Because a company can get an exclusive grant, a monopoly in other words, you think that will encourage them to produce more things that are worthy of such a grant, and so it is a net profit for all. We have many studies showing that this is not the case, that instead monopolies lead to stagnation and gouging. Why should a company struggle to come up with new stuff when they can milk what they have? Indeed, they often go to war against new products that might undermine their cash cow. Consider how Ma Bell held back telephony. You couldn't get so much as a longer cord for a handset, let alone a second phone attached to your line without Ma Bell charging you an additional monthly fee. The only reason we ever had the ridiculous 110 baud acoustic modems was to get around Ma Bell's obstructionism. We knew they were a bad idea and a waste of money. The RIAA is still clinging hard to the CD, and screaming that digital downloads are just piracy. I wonder how long stores will continue to carry these horribly inefficient means of music delivery. If the RIAA could, they would not hesitate to enforce patents on the mp3 format, or anything else related to digital downloads, solely to prop up CD sales.

Re:Software Patent Attorney's Perspective

[steve79]

>> Is Europe such a wasteland of software innovation? I don't uncritically accept that proposition. How do you measure that?

Totally anecdotal on my part. I'm looking at my own desktop, the only software from Europe is Avira. What large, innovative software companies can you name (without resorting to Google) that are from western Europe? I'm sure there's a couple... NOTHING like the huge numbers you see in the USA.

>> I also don't buy the idea that excluding others is the way to profit.

That's not really it -- close, but not it. Consider if you had $100MM and wanted to invest, and you had two scenarios. (1) Company ABC that has 50 patents filed on its core algorithms, 10 granted patents. Some will surely be invalid when issued just because, well, the USPTO is still working on quality in examing the software arts... not a perfect art by any means. But some will be valid. Won't be perfect. (2) Company XYZ, identical product offering to company ABC, but has no patents because all of the developers apparently subscribe to the Slashdot notion that all patents are bad ;). The product offering of both companies is quite innovative, but reality as it is, other smart companies could get within 99% of what they're doing by analyzing their product, within about 6 months and with modest investment of about $100k.

Questions:
(1) Which would you, as an investor, be more interested in?
(2) Which would you, as a developer interested in having a job, be more interested in?
(4) Which do you think would be worth more money? Have more profit potential?
(5) Which company would have more interest in further developing the product (knowing it can be reverse engineered w/ modest expenditure)?

To 99% of the /.'ers who out of hand dismiss all patents on software, if they answer this honestly, they'll see they're just silly.

Patents are a mixed bag -- they are hugely beneficial to some, but without question they have a social cost. The question is, though, how to encourage innovation? USA has strong patent rights, and the most innovative companies and labs, as a whole, than any other country in the world. As an experiment, USA tech. is a huge success. I think patent rights has a lot to do w/ that, and the scenario above plays out thousands of times / week everywhere in the world... a lot of places outside the US, however, the ABC co. is the norm -- difficult to attract investors!

Re:Software Patent Attorney's Perspective

[steve79]

>> To look at what you are listing - it has been known since the dawn of computers that a signal does not stick at the two voltages selected in the analog circuit for determining what 0 means and what 1 means - typically ~0.0v and ~0.5v, though some use ~0.0v and ~0.33v too.

I think you're focusing on the layman's explanation rather than the claims. Look @ the claims instead... they have survived a first challenge on prior art grounds. It is not as simple as you're suggesting b/c it would be invalid due to prior art.

The Bilski-like patents are the "bad apples" that cause a lot of bad will towards software-type patents (and so-called business method patents). The two should not be lumped together in my mind. There are hugely innovative, wonderful things being done in software, and socially we'd be silly to disincentivize this part -- the largest company in the world is ... a computer company... I just don't understand how /.'ers can all just assume the system is broken when they've probably all benefited from it (strong job market, for example).

Re:Software Patent Attorney's Perspective

[bzipitidoo]

Software from Europe? Linus Torvalds is from Finland. Julian Seward, the author of Valgrind and bzip2, is from Britain. The US produces more software, yes, but is that because of patents? I suggest it's because the US has a more entrepreneurial tradition, a more adventurous spirit, and that is because we are descended from the more adventurous Europeans who chose to come here at a time when crossing the ocean was a risky, blind leap of faith, and practically a one way trip. In the 19th century, Britain was the technology leader, and America shamelessly appropriated any ideas it wanted, ignoring Britain's furious complaints about patent violations and the like.

As to your investment scenario, that depends. If my goal to make a little money without much risk, then I would take a conservative approach, which may mean company ABC. Figuring in the choice is an assessment of the odds of the patent system being drastically reformed. I would guess that's very low. But if my goal is otherwise-- making money may not be the only reason to invest!-- then I might well go with XYZ. I actually do invest in green energy companies, and have lost money on this. But I figure the losses a little differently. If just one of those investments leads to a breakthrough that weans us off oil, then I feel I will be amply repaid even if I see no money through some swindle such as all my shares being made worthless in a bankruptcy, while an outside buyer gets to scoop up the results cheap. I know very well that the market is rigged in just this fashion, and that patents actually make this problem worse. Piracy is a real equalizer here. It's a flaw that our capitalist system does not account for quite a few costs and benefits, is vulnerable to this kind of manipulation and fraud, and is not well policed because the crooks have weakened and corrupted the people we have put in place to enforce what little we still have in the way of law. The SEC is not doing its job. So I also keep an ear open for alternatives to the stock markets. GPL is one such alternative. Makes sure that no matter what games these criminal fools play with intellectual properties, our work does not end up locked up, buried, and lost.

Imagine if some university makes a breakthrough with batteries that make the electric car practical, and a company acquires exclusive rights to this technology. Then suppose this company is driven into bankruptcy and taken over by the oil industry, who decides it will be more profitable to their existing business to keep this new tech from seeing the light of day for as long as possible. For years there have been these urban legends of the magical mythical 100 MPG carburettor that was kept from the public. The oil companies bribed the auto manufacturers to bury it. Or the auto manufacturers themselves decided to bury it. These legends persist because it is quite plausible to suggest companies would do such anti-social things.

Now, you ask how to encourage innovation. Patents and copyrights are supposed to do just that. But do they really? I would say the evidence is at the least very mixed on that point, and even does show that they actually retard innovation. So, what do we do instead? One option is nothing at all. Abolish all patents, and replace them with nothing. Innovation is its own reward. The first mover advantage is enough. Another option is to go to some kind of patronage system. This worked quite well in the past. For instance, European music flourished as the dozens of small independent states competed with one another in matters of culture as well as war and commerce. No respectable court lacked a court composer. Competitive patronage also got us to the moon. Niel Armstrong said "a man" (or just "man") and "mankind", not "an American" and "America". America got the honor of being the sponsor, the patron, of this huge accomplishment. It was much the same with the transcontinental railroad. Private corporations did the work, but it would never have happened without governmen

Re:Software Patent Attorney's Perspective

[Anonymous Coward]

>> To look at what you are listing - it has been known since the dawn of computers that a signal does not stick at the two voltages selected in the analog circuit for determining what 0 means and what 1 means - typically ~0.0v and ~0.5v, though some use ~0.0v and ~0.33v too.

I think you're focusing on the layman's explanation rather than the claims. Look @ the claims instead... they have survived a first challenge on prior art grounds. It is not as simple as you're suggesting b/c it would be invalid due to prior art.

As noted, I am prevented from reading the patent - and thus the claims - due to my field of work and too high a risk should patent litigation occur. (I do agree that litigation over this particular is highly unlikely, but that still does not resolve the issue.) I am going off the summaries provided.

The Bilski-like patents are the "bad apples" that cause a lot of bad will towards software-type patents (and so-called business method patents). The two should not be lumped together in my mind. There are hugely innovative, wonderful things being done in software, and socially we'd be silly to disincentivize this part -- the largest company in the world is ... a computer company... I just don't understand how /.'ers can all just assume the system is broken when they've probably all benefited from it (strong job market, for example).

In your opinion, then, the Bilski-like patents are the minority; in the opinion of the software engineering field with respect to software patents they are the majority if not the definition of a software patent.

Look at Adobe, Oracle, Apple, and Microsoft - four of the software industry titans. Those companies did not form around patents - they formed around technology and primarily software (Apple also had hardware that was probably patented, but their success is largely due to their software running on that hardware). In all cases they did not protect that software using patents - they protected it using copyright law, contract law, and trade secret law.

Now look at the newer titans - Google, Facebook, LinkedIn, Twitter, etc. They're very much in the same boat. They didn't rely on a patent to build their business. They relied on Trade Secret law and Copyright law. Most of those use Open Source software - so they're utilizing the GNU GPL which relies on Copyright law.

The only software company that I can think of that relied on patents (now expired) to build a business was RSA (rsa.com) now owned by EMC, I would not necessarily say that their patent was valid - it probably would not have survived Bilski or several others.

Now all of the above mentioned companies do have patents - and software patents at that - on file. However, the vast majority are either for (i) defensive purposes (namely the newer players, e.g. Google, Facebook, etc), or (ii) offensive purposes (keep new players out of the market, e.g. Apple, Microsoft, Oracle).

This is the big separation between us. The software industry sees an industry that thrives under simple copyright and trade secret laws; yet is strangled by patent litigations and billion dollar awards for even minor infringements that are so costly to defend against that it will be something that may start keeping companies out of the market - thereby breaking down the industry as new ideas stop coming forth, or do so warily.

Yes, I am a software business owner with my own start-up. I don't look to patents to solve my business plan; I look to solving customer's problems to do that. Fear of patent litigation is an issue - one I cannot get insurance against, nor quantify in any way. There is no ability to protect the company from it. One recent case gave a billion dollar verdict that matched the value of the whole company found to be infringing over something that didn't even affect its main products. So please, tell me again how patents are going to save the day when they are merely trouble that I have to deal with.

defining terms would be a good start

[Anonymous Coward]

for example, what exactly is meant by a 'software patent'? Any technology that could be implemented by using a program running on a programmable device? That's pretty broad. Example: many of the techniques in compression are, in fact, signal processing patents; yes, they are implementable in software, but also often implemented in hardware. (Yes, there are many patents on apparently trivial coding or representation issues, as well).

Personally, I would like a much more stringent test for obvious-ness and prior art. Some 'software patents' really are the result of much research and brilliant insight, and I don't see an a priori reason to ban them. But the 'noise' of 'nuisance patents' is a pain for everyone.

If doing X is not patentable

[Anonymous Coward]

then doing X on a computer should not be either.
      Where 'on a computer' includes any and all lawyer rewrites to get around the restriction.

X might not be patentable because it's been done in other ways for a long time, or because it's a part of nature, or simply a non-patentable idea.

It should be presumed that in this day and time, it is obvious to do anything on a computer.
      so the dim bulb idea of 'hey, let's do it on a computer' should not be novel.

Disclosure for a software patent should ALWAYS include the source code for a working model.
      The office has the right to ask for one, but they often don't because it's a lot of trouble.
        In the special case of software, it's not any trouble, so they should always require it.
        Of course, if the code is later found to not do what is claimed, then the claim should be thrown out.
                (Both because the applicant didn't teach what he should have and because he probably didn't know how to do what he claimed.)

With these restrictions, software patents will still be permitted, not probably not preferable.
        (Why not just get a broader patent on X in the first place.

     

What do people think about a middle ground.

[plebeian]

Instead of issuing software patents with a 15 year protection period, how about we give inventors a shortened time-frame (3 years to) sell their product if they have demonstrated that have sales of a product and are willing to license it on the open market we extend protection to a full term (10 years). This way patent trolls would loose their protection unless they are actively leveraging their patent portfolio. Obviously the numbers could be negotiated and the definition of sales would have to be clarified to minimize abuse. Given the rate of change in the software world if you don't have sales within three years, your invention should become public domain so that other people can improve upon it without threat of litigation.

Re:What do people think about a middle ground.

[Derekloffin]

The problem with short terms like 3 or say even 5 years is that legal battles can easily drag through those time periods. So let's just say Apple makes a legitimately innovative software solution to a key problem and adds it to their next iPhone. Samsung comes along and copies this. Apple sues. Well, it ends up stuck in the courts for a year plus before even the injunctions are decided, and add to that some pre-litigation time to negotiate, and you end up with the patent nearly out of term already before the court battle is decided, yet the infringer got to get into the market and get position. Even if in this example Samsung loses, they will now have a decent position in the market for when the patent expires, losing much of the strength of the patent in the first place. (Note all Apple and Samsung fanboys, I'm just using them as examples, I think both need a good lacing down for their BS in market). That being the case, the patent is kinda pointless. And this still doesn't address that the patents are far too often not legitimately innovative, and usually way over broad in their scope.

Don't fight the novelty argument

[Anonymous Coward]

I hope everybody doesn't go after the novelity argument. Instead I'd like to see the patents challenged on the value of disclosure taking into consideration how the industry works. It is a common practice (at least in my neck of the non-American woods) for developers to be told to ignore patents, as the cost of licensing would be too great. Better to sort it out after the fact. Essentially what our legal departments are telling us is that the disclosure has no value since we will actively seek to keep ourselves ignorance to minimize damages. If there is no value in disclosure (the whole point of a patent!), then why do we grant a monopoly?

Why?

[Anonymous Coward]

They'll just 1>/dev/null anyway.

tax patent enforcement to fund USPTO

[4wdloop]

>> That flow needs to be controlled! One sollution might be increasing the cost to apply for a patent so that only worthy ideas are worth attempting. The problem with that is a price that keeps larger companies in check shuts out individuals and small companies entirely.

Yes, $1E6 for me is a lot, while for iDevice Inc is nothing.

Perhaps a "tax" on enforcement (attempt weather successful or not and/or actual settlements/licenses) proportional to the expected value of the enforcement could fund better USPTO performance? This would also curb patent-troll extortion somewhat. This probably goes against US law principles...

Copyright OR Patent but just one

[sjbe]

A lot of problems could be solved by simply declaring that if a work can be copyrighted then it is not eligible for patent protection as well. Software is basically a written work and it is automatically protected under copyright law. Works should only be eligible to be covered under one or the other but not both. An important details is that if a work CAN be covered under copyright law then it MUST be covered under copyright law. As such, most software would be ineligible for patent protection under such a rule. While it might not solve all problems (such as business method patents) it would go a long way towards eliminating the problem of software patents.

Back to basics

[Tony Isaac]

The biggest problem with software patents, it seems to me, is that the USPTO has strayed from its roots in applying patents to software. For example:

- A working model is required for an application for a "traditional" patent. Why not software patents? Requiring a working model alone would eliminate a large portion of software patents.
- Instructions for replicating the patented item are required for traditional patents, thus making it useful in the public domain when the patent expires. Why is software exempted?
- Traditional patents exclude patenting of an idea. Why is software excluded from this restriction?

Maybe not ALL software patents are bad. But if we went back to the roots of the patent concept, most of the frivolous patents would go away.

Goals for the roundtable (from the fed's "Notice")

[4wdloop]

The first topic relates to how to improve clarity of claim boundaries that define the scope of patent protection for claims that use functional language.
The second topic requests that the public identify additional topics for future discussion by the Software Partnership.
The third topic relates to a forthcoming Request for Comments on Preparation of Patent Applications and offers an opportunity for oral presentations on the Request for Comments at the Silicon Valley and New York City roundtable events.

Written comments are requested in response to the first two discussion topics. Written comments on the third discussion topic must be submitted as directed in the forthcoming Request for Comments on Preparation of Patent Applications.

Realistic demands

[Alomex]

I think the anti-software patents movement has been hurt by their "complete rejection of software patents" position. Look, if you design a truly novel Ethernet conflict resolution algorithm that gives you improved performance over anything else known before you surely deserve a patent. However it should be narrowly defined and have a shortened life span, for reasons opposite to the extended lifespan for long development path currently available to drug developers.

The problem is that currently the USPTO would pretty much approve a patent whose claims are "method to improve Ethernet conflict resolution by using any algorithm to recompute the delay". This is overly broad and without parallel in the physical embodiment patent world. In contrast trivial patents do exist in the physical world, but since the claims are so narrow it is very easy to work around them.

Re:NYC Feb 27 - I'll try to make it - Slashdot mee

[oyoaha]

That's the way to go! I am in Oregon (Portland) and willing to meet with other slashdotters - how we should organize that?

Re:Back to basics - Agreed

[Anonymous Coward]

Your comment is spot on. The biggest problems are from the USPTO granting monopolies on concepts and ideas rather than things. The patent office needs to stop granting and revoke existing patents on:

  - Colors
  - Shapes
  - Business practises
  - Mathematical algorithms
  - Existing practise "on X new technology" (where X is computer, Internet, phone, tablet, etc.)

Why I'm sure the USPTO is not sincere

[Zontar_Thing_From_Ve]

As someone who worked for the US federal government in my first job after graduating from college, I'm pretty sure the USPTO is not sincere at all in holding this conference and wanting to "fix" things. Oh some well connected rich company may have reached some upper level USPTO exec and maybe got that person on board with this, but nothing will ever happen in reality. Fixing the system would lead to fewer patents. Fewer patents would lead to fewer employees over time. Fewer employees leads to fewer managers. I am sure that all the managers are looking out for each other just like they did where I worked. And with fewer employees and fewer managers, a smaller budget will follow. Plus, by basically just approving darn near every application that comes their way, they generate a lot of money and Uncle Sam likes making money. I'm sure those who go will get a warm fuzzy that things will change and maybe even some of the USPTO people will really be sincere about wanting to make things better, but I bet it never happens.

You forgot a couple of steps.

[Anonymous Coward]

Input -----> Process -------> Output -----> (?) -----> PROFIT!!!!

There, fixed that for you. You're welcome.

Another vote for banning them outright

[GodfatherofSoul]

I had a software ethics class last semester and the patent wars created by ambiguous patents are far worse that the situation before hand. Plus, the only people winning are the trolls. Even the megacorporations like Apple and Microsoft with massive patent portfolios are sinking tons of capital into their offensive and defensive campaigns.

The Purpose of Patents

[RedDeadThumb]

To come up with a decent system, we need to start at the beginning. What is the purpose of the patent system and is the implementation of that system actually fulfilling that purpose. We must first consider if there is really is any benefit to software (actually all) patents or not. There are essentially 3 cases in the marketplace I can see.

case 1. Two almost equally sized companies working on the same product(s). This situation does not seem to require patents. Let them compete on execution. The one to think of it first has a head start already, they don't need to be granted exclusive rights.

case 2. Smaller company tech is reverse engineered by large company and then out competed in the marketplace by the larger company with more resources. This case is the only one patents help with and should cover.

case 3. Independent inventor develops an invention that they believe they can sell or bring to production later but currently lacks to the ability to do anything with the idea.

It seems like we do need to allow some sort of limited ownership of tech to prevent case 2 from stifling startups. Also we should have provision for those without the means or fortitude to bring an invention to production to have the opportunity to pimp their inventions without fear of loss. So for patents to work as a benefit to society, they need to operate something as follows.

1. Startup company files a patent to give them exclusive right to develop a new product they thought up first. Patent includes deliverables and development timelines. Company pays a yearly fee along with updates to the timelines. If timelines are missed by more than 1 year on each update, patent is invalidated. (This to make sure progress to market is actually being made.) Company is given 1-5 years exclusive market rights after the product is delivered (depending on the product) to recoup costs and establish a market.

2. An established company (one with at least one product on the market and revenue) can file a patent only to keep (1) from preventing them from developing a product. That is, since (1) allows startups to block an established company from entering a market for a period, if the established company thinks of an idea first they need a way to keep that from happening. Patents from an established company do not require a development timeline since they cannot be used to prevent anyone from developing the patented technology.

3. A non-practicing inventor can file a patent (without development timeline) and then pay a yearly fee to keep it under their control. The fee will increase steeply every year and have a time limit of X years (X = 10?). The increasing fee will prompt them to develop or sell rather than just sit on the invention.

As far as I can tell, this scheme would fix the patents system to be beneficial to everyone that actually does something. (ie. not lawyers or politicians). See any holes in it? Why wouldn't this work?

The U.S. patent system

[Anonymous Coward]

With today's U.S. patent laws, Isaac Newton could not have "stood upon the shoulders of giants".
We're looking at nothing less than the survival of the U.S. as a major power, instead of being crippled by the current anomaly of crippling innovation.

Fuck

[Anonymous Coward]

NO

A Process for generating Patent Violations

[presidenteloco]

What is claimed is:
A computer with a pixel-rendering output screen programmed with a master program (as described in the following pseudocode):
1. A bitstring length counter variable keeps track of the length of the longest bitstring generated so far.
2. The master program generates and stores in memory (or persistent-storage mappable to memory) a length 1 bitstring containing
the bit value "0".
3.The master program feeds this data to a low-level virtual machine as a program to be executed.
The virtual machine has been linked with functioning graphics display libraries, so that, should the libraries be invoked with the correct calls with valid input, graphical output including but not limited to text characters, vector graphics, and bitmapped images will be emitted onto the screen.
4.If there is a program execution error in the LLVM, the master program proceeds to step 6.
5. After an arbitrary but predefined timeout period, the master program terminates the program running in the LLVM, if the program has not terminated itself.
6. The master program changes the bit value in the bitstring to "1" and returns to step 3, except that the master program uses a recursive backtracking algorithm to generate every combination, in turn, of bit values for the current length of the bitstring, and when every such combination is exhausted, the master program increases the bitstring length counter by 1 and applies the recursive bitstring-value-generating algorithm to the bitstring of the new length.In each case, when a single new bitstring value has been generated by one change made by the recursive algorithm, the master program generates that bitstring and saves the recursion state, and returns to step 3.

Non-Obviousness is #1 problem

[Tablizer]

I'd like to see a better test of "non-obviousness". Obviousness is part of the test, but appears to be given short attention by evaluators.

Maybe a panel of practitioners can vote on or rank obviousness, or the like. A "technical jury", if you will.

I'd like to see true innovation be rewarded, instead of mostly obvious ideas or obvious combo's of existing ideas, which stifles new products and small co's.

Kill all software patents off ... limit copyrights

[Anonymous Coward]

Kill all software patents off forever, limit all copyrights to 50 yrs.

Does it make sense that the Happy Birthday song words are copyright protected for over 100 years? The tune itself was create in the 1800s.

Crazy.

Disney needs to create something new. Mickey Mouse needed to be public domain years and years ago.

The same applies to music and movies. 50 yrs to make a profit is more than enough.

The balance of corporate interest vs public good has bent too far in the wrong direction.

Appointment

[Anne Thwacks]

I cant attend, but I'd like to appoint Pamela Jones and RMS to represent me.

How About....

[Spicerun]

1. The Patent Office actually does searches on prior software & methods before granting/rubber-stamping that application, and expecting the courts to do the searching for them.
2. Only Software Experts/Engineers, on more than just Microsoft Development Programming minimally, should be doing the patent examinations/patent searches/patent approvals.
3. USPO should have the power to reject an approved patent at any time, for a minimum of 'patent application in bad faith.

These points would be a start for my satisfaction.

Re:NYC Feb 27 - I'll try to make it - Slashdot mee

[Anonymous Coward]

Yes, it's important to have a practiced, refined opinion. Stick to the strong points, quality matters over quantity. Don't fall into weak argument traps the likes that can be exploited on Fox (Sandra Fluke is a slut because she wants BC for health reasons, der). This is US politics, you have to be perfect.

You can bet all the patent trolls already have had their say, with a nice tip to boot.

Mosaic as an example against software patents

[mdmkolbe]

In order to convince non-programmers, we have to show how software patents block technology they use and want. An example is Mosaic and the web. (I'd welcome others.)

If the implementers of the Mosaic web browser had patented "displaying hypertext images inline" in 1993, the web and all its benefits would never have happened. (E-mail and FTP still exist if that's any consolation.) Locking up that technology behind a patent that wouldn't have expired until 2010(!), would have hamstrung our technological development. A few very rich companies (Microsoft?) might license it, but the extra cost of licensing would prevent the web from gaining critical mass. Without the web many other technologies never exist. Apple never builds the iPhone (smart phones aren't all that useful without web infrastructure). Google, Amazon, Facebook, etc. never even exist.

If this much damage could be done by just one software patent, think how much an entire industry of software patents does.

Parliament or Senate system.

[Anonymous Coward]

Senators or MPs represent constituencies. I will vote for a person who is an influential person in the industry (IT) or, influential in a particular line of industry (storage, network, security, etc.). This 'particular line of industry' is the 'constituency'. These persons then define parameters on what could be allowed for patenting. Then, when a patent (bill) comes to the 'Senators or MPs', they debate on its applicability and 'sign' the 'bill' into a 'law' (a patent). Already, leading persons in the industry sit on various standards bodies or other such committees, so, 'conflict of interest' does not really apply....I think. One would say, such a system already exists. It is called...USPTO. But, just as belief in monarchies gave way to democracy for 'better' governance, perhaps, USPTO can be more inclusive by more collaboration with industry experts. Or, maybe there are other better ways. Or, maybe, I will just stop complaining against patents until I have, at least some semblance of, a solution.

good paper but difficult

[fritsd]

Phew that one was difficult to read.. my semiotics is not up to scratch :-)

I liked the quote from Collins:

"T]he semiotic framework suggests that the Federal Circuit should reconsider the routine patentability of newly invented computer models. When addressing computer models, the Federal Circuit today elides the sign-vehicle with the sign and therefore commits a classic semiotic error: it inappropriately reifies a newly invented semiotic meaning into a new intrinsic property of a tangible, extra-mental artifact. As a result, it sanctions a patent on a meaningful thing even when the only invention at issue resides in the mind of the person who understands the thing's newly invented semiotic meaning. Claims to newly invented computer models literally describe a programmed computer (a sign-vehicle), yet the only inventive aspect of the claimed technology may be a new mental state in the mind of a computer user (an interpretant). "

I'll risk sounding like a pedantic arrogant asshole and i'll point out that the word "reifies" means: to believe an abstract thought to be something material, real, tangible (tangible means that you can touch it). From the Latin res, thing.

<offtopic>P.S. Reading this reminded me of Umberto Eco's book on semiotics, which in turn reminded me of The Name of The Rose and Foucault's Pendulum. Ain't woolgathering fun! </offtopic>

Abstract is as abstract does

[Anonymous Coward]

A piece of software should be patentable if and only if it does something novel and non obvious on a concrete piece of hardware. For example: drawing something on a rectangular lattice of pixels is not patentable since it does something abstract on an abstract device. Drawing same thing on a particular type of monitor if it is not obvious otherwise (you could not replace the monitor with some abstract lattice and the algorithm would stil work) should be patentable.
This would mean that the patent matter in mp3 for example would be the quotients tuned for human audition on a 44kHz sampling rate sound card and not FFT applied to audio encoding.
And Apple could patent "bounce back" only on IPhones.