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Nobelist Gary Becker Calls For an End To Software Patents
GigaOM notes that (excerpting) "Gary Becker, a Nobel-prize winning professor at the University of Chicago, stated this week that the U.S. patent system is ”too broad, too loose, and too expensive” and called for the end of software patents: 'Disputes over software patents are among the most common, expensive, and counterproductive. Their exclusion from the patent system would discourage some software innovations, but the saving from litigation costs over disputed patent rights would more than compensate the economy for that cost.'" Here are Becker's comments, from the always-fun Becker-Posner Blog.
Is it a mere algorithm? An algorithm with a specific realised implementation?
Since I'm not currently in a country where mathematics can be owned, it seems weird to me.
Does any software company actually indicate that they would stop work if it were not for software patents? I.e. is there any company which says that it relies on software patents to do business in software, rather than as a defensive/offensive mechanism?
I believe the generally accepted term is "Nobel Laureate". Who wrote "Nobelist"?
Is 1563649 a prime number?
It boggles my mind that the Government expects that software developers will do patent searches as they write their code rather than simply implementing what is obvious at the time to implement. Software patents are written in such a way as to make them difficult to interpret and appear broad even when they aren't. It simply isn't practical for software developers were to do their "due diligence" as they write their code, and if they did no appreciable amount of code would be written.
It is quite likely that most if not all software written violates at least a small handful of patents (remember the XOR patent?) -- creating an unfair advantage for the companies who have enormous in-house legal councils who can pursue purported patent violations.
It is always a bit humorous for me when I think about the arguments that we need copyrights that are 70 years plus the life of the author but for patents, 20 years is adequate. What's more, that Congress can make copyrights retroactive. Just imagine the chaos that would ensue if they gave patents a similar term as copyrights and re-instituted patents retroactively as they did copyrights. While and enormous headache and make our economy come to a screeching halt, it would be a lot of fun to watch.
Their exclusion from the patent system would discourage some software innovations
Can anyone point to a single actual instance of a software innovation which wouldn't have become public without the benefit of patent protection?
You can apply his arguments to more than software. Patents discourage innovation. Under the current system small companies and individuals end up with a huge disadvantage. Huge companies have enough resources to try to patent everything hope a few are approved.
Why should firmware be any different?
All your approach would lead too is software that requires a peripheral with some firmware in it to run.
The funny part is that that's a specific algorithm and explicitly excluded. It's the trivial crap that's getting patented.
I believe the generally accepted term is "Nobel Laureate".
Becker is actually a laureate of the Nobel Prize in Economic Sciences, which is not the Nobel Prize.
Formula 1 has zero use for patents. If a team invents something useful they try to keep it secret. If a team were to apply for a patent for one of their inventions, the other teams would simply band together and change the rules to explicitly ban that patent from use in the race cars. Despite this, the teams spend tens of millions (if not hundreds of millions) every year on the development of their cars. Top teams bring changes and innovations every two weeks (average time between races). Relax Corporate America, innovation will survive just fine without software patents.
Now if someone points out that what F1 does is employ Trade Secrets, and the idea behind patents is that they allow for the state of the art to be shared in the public domain, I have to agree. But the actual result of the patent system is that no one reads about patents (knowingly infringing a patent results in triple damages), so the patent system isn't even achieving that goal.
Ok, let's be fundamental about this. Isn't it strange that we should consider "software" as different from other intellectual property? If X hours of work have been invested into the invention of a clever software routine, then, it would be strange if a patent could not be granted for that work while a patent would be granted for some physical apparatus that also took X hours to develop. (Don't think about the stupid "one-click-buy" software patents, but more along the lines of an ingenious differential-equation solver).
So, I don't think a law that says "patents are granted, but not for software" would be a good one. If we would abolish patents, we should do it in all fields.
Remember that the US has to rely on IP protection, for a substantial part of the work done in this country is intellectual. Therefore allowing software patents could in fact be beneficial.
As an aside: in the end, everything is mathematics. Software is mathematics; but also a physical apparatus, or even a medicine can be described mathematically. So, based on this argument, there should be no distinction in IP law.
What should happen, though, is that "stupid" patents should be rejected. I will explain how this could be accomplished.
First, split the patent-office in two parts. The first part, call it the "patent intake office", will *pay* an amount for each patent that they grant. The second member, call it the "evaluation office", will, after 5 years after issue of the patent, determine the societal impact of the patent. If the impact is large, an amount is paid to the intake-office.
(Note that the patent office will initially *pay* for patents that they grant. This is in contrast with the current situation, where the office receives money for each patent that is granted.)
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. And even software, if ingenious and useful, may be granted a patent.
If Pandora's box is destined to be opened, *I* want to be the one to open it.
I'm trying to think of some examples of software innovations that would be discouraged by excluding them from the patent system.
If one wrote software that made some process more efficient, wouldn't one want that process to be more efficient anyway, regardless of the patent status?
Even LZW compression is fairly obvious to a skilled programmer. I remember there were several similar compression algorithms around at the time it was patented. It's not an especially good algorithm, it's just more famous (mostly thanks to the patent wars that surrounded it).
Leaving aside the argument of whether LZW is obvious or not, that's not what the article is talking about. Basically, in an incredibly simplified nutshell, there are 4 separate and independent requirements you have to pass to get a patent, and failing any one of them will result in a rejection or invalid patent. They come from four different statutes:
35 USC 101: the invention must be a useful method, machine, article of manufacture, or composition of matter;
35 USC 102: the invention must be new - i.e. never done before;
35 USC 103: the invention must be non-obvious;
35 USC 112: the invention must be sufficiently described in the patent application to enable someone to make and use it.
You're saying that LZW fails the 103 requirement in that it was obvious... that's a different argument. What this argument is about is whether all software should be excluded from the definition of "method" under 35 USC 101: whether the most novel, most non-obvious, most freakin' revolutionary bit of software in the entire universe should still be ineligible for a patent, because it's software.
The GP post says that yes, maybe that revolutionary software alone should be unpatentable under 101, but if it's part of firmware for an EPROM, then maybe it should be allowed.
Maybe creation will just be so easy and commoditized that it isn't worth it to try to do it as profitable activity. Doesn't mean people won't do it. They'll do it for fun, or because they themselves need something. I'd love it if it was so easy to create a program I need that I could do it on my own without having to hire anyone or rely on someone else to come up with the idea and try to charge me for it. I don't ever see this happening, of course, but if it did, it's not a bad thing.
There isn't always a need for a middle man and no real reason to have one if one is not needed.