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EFF Proposes a Working Code Requirement For Software Patents
Juha Saarinen sends news that the Electronic Frontier Foundation has proposed a fix for software patents in general and patent trolls in particular: requiring applicants to provide specifics about their solution. They say the applications should include working code, or at least "detailed, line-by-line notations explaining how their code works."
"And if they do get a patent, they should be limited to the invention they claimed. We think software patents are bad news, and incredibly harmful to our society and economy. We wish we didn’t have to deal with them at all. But by fixing the functional claiming problem, and limiting patentees to a narrow invention that they actually came up with, we would also limit the amount of harm those patents could cause. The Patent Office does not (yet) have the power to get rid of software patents entirely, but it can fix the functional claiming problem."
This would also allow people who did license the patent to use the code rather than having to re-invent it themselves from scratch, or for that matter people coming along when it had expired...
Hang on isn't that half the point of the patent system? To grant a monopoly on an invention for a limited time in return for providing sufficient information in sufficient detail such that said invention can be replicated when the patent expires?
The question could be asked, why isn't Copyright protection sufficient for your code?
If someone else independently can implement code that does the same thing, then it is obvious it should not be eligible for a patent.
I'll see your senator, and I'll raise you two judges.
The majority of the software patents I've seen are simply a statement of a problem, not a solution. They do nothing to promote the progress of science, and as such should not be considered valid patents, and the laws should be changed to make them not valid patents.
Following the EFF's proposition would be a good way to make sure that your patent states a solution and promotes the progress of science.
If I have been able to see further than others, it is because I bought a pair of binoculars.
I fully support this, I don't even understand why you can patent something which doesn't exist, work and function to an exact specification. I think you should also have to submit the code with the Patent and only the revision or acceptable deviation off the original designs can count towards the patents itself. Software patents are a horrible concept already so lets limit them as far as possible.
This doesn't necessarily do away with patent assertion entities (trolls). Many PAEs are not actually the original inventors/assignees of the patents, but rather buy them later on and begin filing infringement lawsuits. This requirement would, however, reduce the number of startups-turned-trolls who filed and were granted patents but never followed through with development. It also might make the provisional application system more useful, allowing start-ups to file provisionals to establish priority, but also requiring them to develop a working prototype before granting a utility patent.
It seems to me like a lot of these patents are about interfaces, not algorithms or code. If you're patenting rounding buttons or that the software allows you to purchase with one click, the code is probably trivial. It's either a visual or interface idea.
separate the patent fees into a Prelim and a Filing fee. Then if you want to file a prelim patent (to get cover while you do the code) you then pay the Filing Fee to upgrade it to a Full Patent ap. If it gets rejected you can refile but you have to pay the Filing Fee each time (so try 12 times you pay the prelim fee and 12 filing fees).
This will also cut down on the "shotgun" approach to patents.
Oh and a Big Reform would be to autodrop patents in the form of X on %new platform% or X And Y Together (unless you bind them in a novel manner)
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Woooo! Bring on the token quick-and-dirty implementations! That'll stop the patent trolls, right?
To be able to bring a patent infringement lawsuit in these software cases, they should require the lawyers to do the coding live. It would either slow them up, or make the courtroom more interesting. You'd at least have an idea that the people involved knew what they were doing.
My brain is overly lubricated
I'm saddened by your choice to 'first' after reading your screen name.
I expect a tremendous boom in offshoring development work as a result.
Every patent troll is going to contract the cheapest possible software development team to implement working code for their idiotic patents.
This is not the right solution to the problem.
Limiting the duration of software patents would be a better one, if abolishing them entirely isn't on the table.
In Soviet Russia, I ruled you
And the carpetbaggers know this. Expect them to fight like rabid animals against any regulatory effort to kill their business model.
Naturally, this could happen only in America: where if you're rich enough, you can shape the law to prop up a bad business model, no matter how lousy.
If the only thing novel about your invention is that you are doing it in software, with a computer, on the internet, etc then it should be obvious as a matter of law.
Priceline is a great example. Take a 700 year old Dutch auction, put it on the internet and suddenly you get a patent? No. Just no.
if (post.content=="first" && post.position()==0) post.delete();
systemd is Roko's Basilisk.
I'm surprised this hasn't been a basic requirement for patents of all types from the get-go. The application should also be required to show that their patent shows significant improvement over previous software, not just a minor obvious tweak.
http://interserver.net/
If you find a way to make your cold remedy better by changing how you make it, then you get another patent.
If you find a way to code up a software patent better by changing how you write it, then you get another patent.
Except in the latter case, you want that to be the same patent as the original.
Now why is that right?
Doesn't copyright already protect working code?
Or is this "You can have the idea if you've actually provided a concrete example"? Just raising the bar for getting the patent.
because the original idea of the patent system is that you don't have to have company secrets about your solutions which are very scary (even from a company perspective as you never know who will talk) but can sort of open them up without losing control. The important part here is the _solution_ part. A Patent has to provide an implementation that addresses a problem, saying "we have a system that fixes the problem xyz" is not sufficient for a patent.
You had to submit a mostly working model of what your patent covers. They did away with this years ago, and the models became collectors items.
Makes sense for algorithms and code. It looks like they used to do this - the patent for RSA has a very detailed explanation on *exactly* how it works. It's practically pseudo-code. Forcing an applicant to specify the exact implementation should help with the vagueness problem of software patents (There's a list of HTTP links and a computer program downloads them automatically, etc...)
It's not a panacea, but I think it's a step in the right direction.
My Other Computer Is A Data General Nova III.
The United States uses a system called "peripheral claiming," in which patent applicants stake out the outermost boundaries or periphery of their claimed invention. This is in contrast to the older (think the 1800s) system of central claiming, where the applicant would claim the "heart" or "gist" of the invention. The problem with central claiming is that courts had to decide when an alleged infringer got "too close" to the claim, which was often a very subjective process. With peripheral claiming, the infringer either has each and every element of the claim or they don't (with a small amount of wiggle room for the doctrine of equivalents). This forces the applicant to say, up front, exactly what they've invented and—importantly—support it in the specification.
Over time, however, there has been a perceived (and perhaps real) growth in the number of patentees trying to make their claims cover more than they actually invented. This is what the written description and enablement requirements in patent law are designed to prevent. See 35 U.S.C. 112. I have said many times on Slashdot and elsewhere that these requirements should be tightened. What the EFF is proposing is, broadly, along those lines, though it is specific to software patents. I am generally not in favor of special rules for different areas of technology. Patent law has mostly avoided that. Copyright law has not, and it has turned the copyright statute into a sprawling mess dictated by special interests.
If the written description and enablement requirements were tightened up, however, then one way that computer-implemented inventions could demonstrate compliance (i.e. show that the application contained "a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains ... to make and use the same") would be to provide extensive source code or pseudocode examples. But in our zeal to rein in unsupported functional claims we should not return to central claiming.
As an aside, right now many if not most patents that involve software use flowcharts rather than pseudocode or source code. This is the result of Patent Office backwardness dating back to its initial opposition to allowing patents on computer-implemented inventions in the first place. Only now is the Patent Office finally recognizing that pseudocode or source code is much more searchable, readable, and useful for everyone involved, including patent examiners, competitors, and alleged infringers.
Not all software patents cover a couple lines of code. Some represent man-decades of effort. Am I expected to first come up with my idea, then write the software, then apply for a patent and then wait 18 months (time from application to publication) to determine if someone else filed before me and that everything I have done is wasted. Do you really expect me to file the patent when the code is complete - giving someone else who does a half-assed implementation a couple year head start? Or let someone else get the patent when they came up with the same idea the same time as me (5 years ago) but filed 1 day before me. I'm not talking rounded buttons here. Think video compression algorithms, advanced image processing, recognition algorithms...
if (post.content=="first" && post.position()==0) post.delete();
Remove && post.position()==0 and you'll have a winner.
You're special forces then? That's great! I just love your olympics!
Snow Crash, right? Good thing he got it before the movie. :)
What the EFF is specifically decrying is functional claiming. That is, an element of a claim described not in terms of what it is but in terms of its function. For example, instead of claiming a nail or a screw, claiming "a means for mechanically fastening" or, even more broadly, "a fastening means." This is allowed under 35 U.S.C. 112 6, now 112(f):
In other words, you can use functional claiming, but you have to explain what you mean in the specification, and you only get what you describe there, plus equivalents. If you don't describe what you mean then the claim is invalid as indefinite.
In the case of software, generically claiming an algorithm (e.g. "sorting means") requires describing in the specification what you mean by that. There has to be some corresponding structure. Failure to properly support a functional claim has bitten many a patentee. This happened just recently in a software patent case involving Google as a defendant, for example. Function Media, L.L.C. v. Google Inc.. Overall, the popularity of functional claiming has been dropping like a rock. From ~1992 to 2011 the percentage of newly issued patents with at least one "means for" claim fell from ~45% to ~10%. It has since fallen to almost 5%.
It's weird that you have content as a public member but require a getter for position. Seems like you should be consistent one way or the other.
The history of patent office is a recurring pattern of regulatory capture, followed by declining standards, following by temporary legislative fixes. If we wish to effect long term reform, we need to recognize the inevitability or regulatory capture. We need to create processes that minimize the damage of regulatory capture.
One resilient process would be to stop using minimum standards. A review of recent Patent Law will reveal that the minimum standard for granting a patent has consistently shifted downwards during the past few decades. This always occurs during periods of regulatory capture. We must abandon the idea that any patent that meets minimum standards is granted. Over time, the standard always degrades.
Everybody knows how to fix this. We use the same fix throughout industry and education. We need competition. Instead of using a minimum standard, you rank Patent Applications according to an agreed measure of quality, and only grant the top 5 percent. Over time, the pressure will be to improve the quality of patent applications, instead of degrade them.
My personal favorite measure of Patent quality is to rank them according to the damage they do to society. Compare the application to last years granted patents. Then, based on that comparison, give the patent application points for:
Then only grant the top applications with the fewest points. This has the advantage of being fairly easy to measure, thus it is hard to challenge in court. Also, the resulting competition will tend to simplify and clarify granted patents.
The Patent office requires many reforms before it can return to sanity. As others have pointed out, it may be easier to simply eliminate it. But, if we pursue reform, we should recognize the cause of decay and address it.
Other needed reforms include:
Miles
Functional, not expressive.
Object code (for anything) is not expressive, purely functional. Therefore no copyright there either.
I don't think you want to go there...
Yeah, Snow Crash. Last night I happened to catch an 'indie' comedy on one of our Aussie channels called something like "Party Down" with a 10 minute discussion on Snow Crash at the start and references throughout the episode, it was similar to Entourage and I was saddened. :)
The real point is, most software patents are abuses of the system. If it becomes necessary to post working code, this will in itself be a huge disincentive for those who are currently using patents inappropriately. Much of the problem will solve itself.
Everyone has overly complex ideas on how to reform the patent system. Why not simply leave it alone and reform the system that allows people to sue when someone violates their patent.
In step 1 of the defense, the defendant provides prior art, claims of obviousness... to the Patent Office who then determines if the patent is still valid. The Patent Office (who are the experts, not the courts) judge if the patent is still valid based on all evidence.
After that if it still goes to court then loser pays attorney fees. No fees are paid before step 1 - so both sides get to hear the arguments before going to court. Plaintiff doesn't get punished with paying legal fees for simply not being aware of prior art. Defendant doesn't pay legal fees until they lose their appeal with the Patent Office and still decide to continue to fight. If the Patent is stuck down in step 1, then the Patent is void. It does not just apply to this single case.
If someone files a patent, and if before it is granted someone else files for the same patent, then both should be invalidated due to being obvious.
It's really hard to prove that you never looked at a patent when implementing something.
The only way for this to work would be if it applied between the time of patent application and the time of patent granting. If multiple applications cover the same thing, then rather than "first to file" all the applications for that patent should be invalidated.
how does it make sense that the first one to file for a patent gets *all* the rights and the other guy gets none of them?
The whole point of the patent system is so that knowledge doesn't get lost. If multiple people independently invent something (regardless of how much time was involved) then by definition that thing is not so original that only one person in the world could figure it out.
Seems like you should be consistent one way or the other.
Seems like you should shut yer yap! ;)
systemd is Roko's Basilisk.
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Such a move would only serve to legitimize software patents. Let's instead get rid of software patents altogether.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
So remember the "party of no" and uncompromising intransigence of the Republicans on giving more revenue to the government without effective cuts? Well this is a good way to illustrate that thinking: letting any organization give-in on this issues gives pretext to the unprincipled people on the other side who have twisted (in collusion with courts below the Supreme Court) the legal system to bless patents on fudamental tools of the sciences and on mathematics it/them- selves.
No matter how you spin it, speaking about its very nature, software is never an invention: it is always a logical application of algorithmic solutions to do something, and so it is never legitimately eligible for the grant of monopoly by what we call a "patent": the case used to legitimate them never did say software was patentable, only that an invention wasn't automatically disqualified from patent protection just because, in some part, it included software to function. Yet magically (because the damn sharks we call lawyers knew the potential for rent seeking), this transformed into permitting software patents: much like Justice J. Marshall's words that the Supreme Court's job is to "say what law is" turned into "what the Supreme Court says is law" in the hands of his successors and the legal system, which our founders would probably have revolted again for.
We should NEVER compromise on permitting or supporting a position that results in unconscionable conditions: software patents are just another form of ideal policing/control, of which we already have too many examples--some in the guise of golden calves that nobody shall dare touch in politics, making truth radical these days. It must stop or else we'll turn into the stuff of Orwell's and Huxley's nightmares, at least, it will be so for those who want to innovate, do, build, support a stable society, their families, and not be slaves pacified by the next bauble and entertainment craze.
Intelligent idiots are we. | Evil men do not understand justice.
First a disclaimer, I hold two software patents. Actually, I'm not sure that the ideas should have been patented, but seeing what else was being patented I felt the need to, at least, protect my ability to use my own ideas. From that standpoint, I think this is an incredibly elegant solution. Many software patents are really of the form, "wouldn't it be neat if software could...". Someone patents the idea, and then waits around for someone else to do the hard work of actually figuring out how to do it in code...then sues them. Frankly, it is often much easier to determine how novel something is by looking at the code than by trying to read the intentionally obfuscated patent description. Thus, this would also make the work of the Patent Office much easier. As an aside, ever wonder why patents have so many claims? It is because lawyers who defend against trolls charge by the claim. The greater the number of claims, the more likely the defendant will settle rather than litigate, or at least that is what my patent lawyer told me.
I would take this idea one step further: No product, no infringement. In other words, if you have not converted your patent into something tangible that someone could buy, then you cannot claim that anyone else is depriving you of revenue. This would also make it much easier for juries in these cases because they could compare product A to product B, rather than comparing product A to a hypothetical list of possible features of a nonexistent product B.