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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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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
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.
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!
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
Object code (for anything) is not expressive, purely functional.
No, it is a literal expression of the creative decisions made at a higher level.
By analogy, consider an oil painting and a JPEG representation of that oil painting. The oil painting is a creative work of authorship fixed in a tangible medium of expression. In a sense, the JPEG is a functional thing: it describes how to produce an image that represents the oil painting. Much of the nuance of the original is lost: it is two-dimensional, digital, etc. But the JPEG is also a derivative work that expresses many of the creative decisions made in the original work. And so the JPEG is also a creative work.
The same is true of source code and object code. A contrived example may show the principle more clearly. Consider a program that creates poetry based on aesthetic rules created by the programmer. The source code is certainly a creative expression, but so is the object code. It contains and expresses those same creative aesthetic rules, albeit in a very literal way, without the nuance of, e.g., variable names or comments. There has been a certain amount of reduction of expression as a result of the compilation process, but many elements of creative expression are still present.
I am skeptical that a new advanced idea or new or improved algorithm that advances the state of the art would take man-decades to turn into working example code. Are there in fact, any such examples of this?
It sounds like you're talking something you would work an entire career on from the time you're young until the time you're old to have something working. ("man-decades") Even if we're talking 2 man-decades == 20 man years, that was done as 20 people for 1 year, it does not seem unreasonable to have a working model. That had been true for non software inventions. I remain skeptical it would take 20 people a year to build a simplistic working model of even an advanced idea. The working model doesn't have to be the most efficient implementation of the idea. It just has to illustrate an advance in the state of the art.
Yes, I know you are identifying a possible problem caused by the proposed requirement of working code. But the EFF proposal is to fix a much more serious and widespread problem that is real and not hypothetical.
I'll see your senator, and I'll raise you two judges.
We like the free market so much, we let those with the most money decide what restrictions exist on the free market.
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.