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Software Patents Are Crumbling, Thanks To the Supreme Court
walterbyrd writes: In June, when the U.S. Supreme Court invalidated a software patent, many in the tech industry hoped it would be the beginning of sweeping changes to how the patent system handles software. Just a few months later, lower courts are making it happen. Quoting Vox: "By my count there have been 10 court rulings on the patentability of software since the Supreme Court's decision — including six that were decided this month. Every single one of them has led to the patent being invalidated. This doesn't necessarily mean that all software patents are in danger — these are mostly patents that are particularly vulnerable to challenge under the new Alice precedent. But it does mean that the pendulum of patent law is now clearly swinging in an anti-patent direction. Every time a patent gets invalidated, it strengthens the bargaining position of every defendant facing a lawsuit from a patent troll."
Meanwhile, the Washington Post reports on alleged corruption in the U.S. Patent and Trademark Office.
Every time a patent gets invalidated ... a developer gets their wings. :-P
There may be some things which truly are inventions, but so many software patents come down to "a system and methodology for doing something which has been done in the real world for decades, but on a computer". And then someone comes along and patents the exact same thing on a tablet. And on a cell phone. And soon, on an iWatch.
There's no net-new invention, just an implementation of something which has been seen before.
Lost at C:>. Found at C.
Making innovative software was a good way to get sued before the Supreme Court stepped in. Google had to spend more money on patents and litigation than it did on R&D. Small start ups were being squeezed by lawyers. There are about 11 million profesional software developers and another 7.5 hobiest programmers. These programmers produce code everyday. Every line of code coud be patented. Every line of code should be prior art. Do you think the patent office examines the 1.2 million apps in the Itunes app store? Does it keep up to date on GitHub's 3.4 million users? Every update, every submission is prior art. None of it is looked at. Patents on software is a bad joke.
It doesn't decrease the incentive to produce software nearly as much as the threat of being sued for violating patents that never should have been granted. There's plenty of software out there that attracts customers by being good and doesn't need the threat of patents to succeed.
There's no point in questioning authority if you aren't going to listen to the answers.
The people it decreases incentive for, are people I don't want making software in the first place. Good riddance. We can have real innovation now.
Actually, GNOME3 is a counterexample. I wish Microsoft held a patent on obnoxious tabletized UIs.
The creatures outside looked from Alt-Right to Antifa; but already it was impossible to say which was which.
IMO, you should be able to patent processes that are based on new technological development, but not the logic/flowpath of the process. Software itself should fall under copyright law.
Please.
The intellectually hard work of software isn't the idea. It's almost entirely within the coding.
When it comes to really ground-breaking stuff it is often the idea, but in those cases the idea belongs (and usually comes from) a paper published in a math or computer science journal or a journal from an adjacent field. It would probably not be a good idea to allow people to patents mathematical truths.
Isn't gnome simply a visual clone of windows/os x windows managers. Where's the innovation?
As an independent software developer, I'd feel much more relieved if software patents were completely abolished. I *know* I'll never willingly infringe on someone's trademark or steal their source code. Those are things that are simple enough to check for. However, software patents are a ticking time bomb waiting to explode in your face. The sheer number of them and the impossibility of easily searching for them means any significant piece of software I write has a high likelihood of infringing on someone's patent.
At the moment, software patents are really nothing but legal nuclear missiles. Every company of significant size has to keep a significant arsenal in order to prevent getting nuked by others. So, now instead of mutually assured destruction, we have "cross-licensing". And you have the patent trolls (arms dealers) who simply leech profits from the legal system by amassing quantities of patents on the cheap, and them attempting to sue "infringing" companies, hoping that a settlement will be cheaper than a legal battle, and the damned thing is, it often works, perpetuating the whole sordid system.
Honestly, I'm not really even generally opposed to the concept of patents, or even of software patents in general. My stance is a more pragmatic one: I feel that we've seen demonstrable evidence that software patents have done a significant amount of harm to our industry, and I've seen no real evidence that the industry benefits in any real way, save for those few people that directly benefit from the "industry" around patents themselves. The government has proven itself absolutely inadequate to the task of judging the merits of these patents in a responsible way, and as such, I think we need to either revoke the ability to patent software altogether, drastically shorten the patent length, or put into law a much, much higher bar for new software patents.
Irony: Agile development has too much intertia to be abandoned now.
When Arstechnica ran that WP story about corruption in the USPTO, several current and past patent examiners posted comments that are worth reading. Two key ones in particular are this and this.
Short story is that USPTO has stupid counterproductive performance metrics, so everyone games the system to look good by the metrics (we've all seen that before). Some managers recognize this and don't want to be assholes about time charging rules because of it, as long as employees are doing good work. Others get upset that the rules are being broken and assume it is blatant time card fraud, and blew the whistle to the news outlets.
The weakening of patent protections mean some small guys will be killed.
Particularly small patent holders that present ideas to big companies, hoping to be bought out, but instead get the shaft.
Nope. A patent is a license to sue. Small players rarely have the resources to do so. A very small number take the risk, fewer still manage it successfully. Pointing to one or two cases where small players were successful is not an argument. You have to look at all patents held by small players, find out how many get violated and what fraction of those use the courts or plausible threat of legal action to defend themselves.
I don't have the numbers, but from an insiders perspective (I am a small patent holder and have worked for a number of small players with patents) I can tell you that the average small player is very unlikely take court action, and that the average large player is unlikely to be much bothered by a threat of patent litigation from a small player, because they know they can simply exhaust the small player's resources.
Blasphemy is a human right. Blasphemophobia kills.
You cannot prove that.
I counter that the very high risk of being crushed by patent litigation costs decreases the incentive for people to innovate, and the crumbling of that risk actually increases this incentive.
Why the heck is parent at "-1" moderation?
Parent is accurate. There are "Method" patents (http://en.wikipedia.org/wiki/Method_(patent)). Essentially, it says "I am doing something in a manner different from what has been seen before". I do take exception to the "I'm doing it with a computer!" attitude. However, consider for a moment, Huell's discontent with the state of patent arts (http://en.wikipedia.org/wiki/Charles_Holland_Duell) when people were doing the same thing "with a steam engine!".
Not the same AC as parent.
Legal Match explains:
You can patent pretty much anything under the sun that is made by man except laws of nature, physical phenomena, and abstract ideas. These categories are excluded subject matter from the scope of patents.
What Are Abstract Ideas?
Abstract ideas are concepts like pure mathematics and algorithms. You cannot patent a formula. However, you can patent an application of that formula. Thus, while you cannot patent a mathematical formula that produces nonrepeating patterns, you can patent paper products that use that formula to prevent rolls of paper from sticking together.
In the legal world it is widely accepted that ideas and algorithms cannot be patented. The reason we have/had software patents at all is that despite Bill Gates once saying that it would have been impossible to create Microsoft if software were patentable, Microsoft (and others I imagine) gave the courts a bull shit argument that since running software affects the physical state of the machine it is running on, software is more like a physical object and less like an idea or algorithm. Since the judges knew next to nothing about computers they accepted this bullshit argument hook, line, and sinker.
The problem with Microsoft's argument is that different implementations of the same algorithm create different physical configurations (electrons and so on) of the hardware. Likewise different CPU architectures create different physical configurations and so on. Microsoft's argument ends up with a patent that protects all possible implementations of a algorithm on a computer which is indistinguishable from patenting the algorithm itself.
That incredibly ill-informed and stupid decision opened the floodgates for "... on a computer" patents. The Supreme Court is now trying to rectify that mistake. Abstract ideas cannot be patented. Mathematics cannot be patented. Algorithms cannot be patented. However you can protect the expression of an algorithm by using copyright to protect your particular implementation. You cannot protect all possible implementations of an abstract idea.
We don't see the world as it is, we see it as we are.
-- Anais Nin