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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.
...but it decreases the incentive for people to make innovative software
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.
If the code-writing industry is going to rely on civil court judges and federal patent clerks to make the decisions, the firms with 2 lawyers per coder will win out. If the code-writing industry goes to no-patents, it will be from each coder according to his ability, to each according to his need. The only solution is for some industry gurus to come up with some rules which everyone agrees to abide by, and then to submit the concensus in friend-of-court decisions. I have no idea whether anyone in the industry is prepared to even define the 80/20 rule, but if they can agree on the WORST patent decisions (either way) and get some concensus on them, and then try to find commonalities in what made those "bad", it could be a start.
Gently reply
Particularly small patent holders that present ideas to big companies, hoping to be bought out, but instead get the shaft.
Honestly, the real problem is that patents last too long.
If you can't make your profit in 5 years, then your product was never very good in the first place. In that time, you should be able to 'corner the market', develop a brand - including the reputation for quality, and most importantly, learn business secrets that will give you a leg up against the competition.
After that time, you are just holding back other people from improving your product.
Perhaps we need a graduated patent system. Most patents would get 5 years, particularly impressive products get 10 years, and entirely new products that create new types of businesses/industries get 20 years. That is, an improvement to a cellphone gets 5 years, but the creation of a cell phone gets 20 years.
excitingthingstodo.blogspot.com
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.
It's a problem, though, because there's no simple metric to determine whether patent examiners are doing a good job. Using number of patents reviewed as that metric encourages examiners to do a shoddy job actually examining the patents (i.e. what has actually been happening). If they are expected to pass only a certain fraction of patents, this is slightly better since it forces them to actually come up with reasons to reject some patents, but what fraction should they use? Two examiners doing perfect jobs may have very different fractions of accepted patents simply because one got better patents to review than the other, especially if they have different focus areas. Does the patent office even know the fraction of submitted patents in various areas which are good? A better metric would be whether accepted patents survive in the courts, but this depends on somebody actually challenging the patents and takes years after the fact. It might help now throw out some of the patent examiners who clearly haven't been doing their jobs in the past.
I'm not sure what the right solution is. Blind peer review and multiple review? Assign each patent to 2 or 3 different reviewers and call to carpet the ones who most consistently differ from others? Does that even work if half your patent examiners are shirking?
The best part is hearing the lamentations of software patent attorneys and rejoicing in the sounds of their despair.
Dewey, what part of this looks like authorities should be involved?
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
The European Commission fought like hell to push software patents, and now they vanish in the US... nothing happen anymore.
That suggests the only motivation for software patents in EU was to have legislation on par for TAFTA.