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Prominent Pro-Patent Judge Issues Opinion Declaring All Software Patents Bad (techdirt.com)
An anonymous reader quotes a report from Techdirt: A lawsuit brought by the world's largest patent troll, Intellectual Ventures, and handled on appeal (as are all patent cases), by the notoriously awful Court of Appeals for the Federal Circuit (CAFC) may have actually killed off software patents. The ruling came from a judge that has ruled over patent cases since the 1980s, and it appears he's been born again into the anti-software patent world. Judge Mayer pointed out that the First Amendment says that "some" patents should not be allowed. The whole concurrence is worth reading, starting with the First Amendment argument -- which is kind of fascinating in that it goes well beyond what most people had talked about in the past concerning software patents. Judge Mayer makes the point that basically all software is unpatentable because software is "a form of language," which we don't patent: "All software implemented on a standard computer should be deemed categorically outside the bounds of Section 101. ("Section 101" is 35 U.S. Code; 101 is the part that governs patents.) The central problem with affording patent protection to generically-implemented software is that standard computers have long been ceded to the public domain .... Because generic computers are ubiquitous and indispensable, in effect the 'basic tool []' of modern life, they are not subject to the patent monopoly. In the section 101 calculus, adding software (which is as abstract as language) to a conventional computer (which rightfully resides in the public domain) results in a patent eligibility score of zero .... Software lies in the antechamber of patentable invention. Because generically-implemented software is an 'idea' insufficiently linked to any defining physical structure other than a standard computer, it is a precursor to technology rather than technology itself."
He's in Texas.
Really all that one can say.
I'm speechless. Is that patentable?
That actually aligns neatly with the current UK approach, where standalone software can not be patented but the combination of physical technology and the software needed to operate it can.
Next stop: Algorithms.
Because Texas.
Is this Judge in Texas, and how does this change of opinion affect his prior rulings?
I'll bet any amount of money this judge is an old, white, fat, Christian slob in Texas.
I completely disagree with the assertion that software is not a technology... the term technology encompasses any application of knowledge to problem solving. Yet I agree with the conclusion that software should not be patentable... I don't know how I feel.
of something reeeeally good! Tired of seeing all the see-saw patent wars between the big guns and the sniping by the gd patent trolls.
nt
Welcome to election season. DOn't expect it to last past november 8th.
Finally they are starting to understand!!
Slow clap: https://www.youtube.com/watch?...
Higuita
This judge has started climate in hell.
Say no to software patents.
Get rid of them all.
A check just cleared or a check just bounced.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
This will set no precedence as it was a separate but consenting opinion (IANAL). That was mentioned in the techdirt.com article, but only at the very end of it. It is still significant as the judge in question has actually lead the Court of Appeals for the Federal Circuit (CAFC) during some of its worst years. Worse for software, specifically. So this is a hard about face from someone that was at the forefront of enabling software patents from the bench of the CAFC. While it won't actually change much, it is good to hear/read.
IANAL but as I see it, the US courts have a history of repeating the first ruling made, regardless of its usefulness. US courts have protected software patents; until someone questions the relevance of that, the ruling remains.
To be honest, I envy y'all. You get to experience my brilliance in a way I never will. You're welcome.
All software patents are illegal. Patent law states that algorithms cannot be patented. Why don't the courts have to obey the law?
Don't stop where the ink does.
By extension, nothing can be patented. Any idea or concept which is currently patented is expressed through language. I agree that the code itself should not be patented as it is indeed a form of language, but the implementation or methodology by which an application achieves an end result is the true value that needs to be protected; not the package it comes in. All that being said, I'm definitely in favour of open source happy-happy code sharing instead of patents and copyrights.
At this point there is very little novel invention that can be done with only a standard computer. Let's say Theranos created a really slick USB device that lets a user do a blood test from their computer (stop laughing, it could happen). 90% of the cool stuff that is patent-worthy is going to be in the device and the software that actually drives the device. The part that interfaces with the OS and UI is the boring part.
Software is a description of a machine - something that takes input, does some processing, and produces an output. That middle part - how the machine works - should certainly be patentable *if* it is truly novel. The issue is that the best implementation is often the simplest, and simple is often obvious, which isn't necessarily patentable (i.e. a bubble sort shouldn't be patentable because out of 100 programmers more than half would likely come up with a bubble sort-like implementation)
You can bet patent trolls and corporations hoarding patents to intimidate rivals and startups will be outraged and harrass their congressman. WELL FUCK THEM. Give those patenters the Fargo Woodchipper treatment.
Want to know how bad software patents are? Read Math You Can't Use: Patents, Copyright & Software by Ben Klemens He describes how big multinational called up startup and said GIVE US FUCKING MONEY YOU BITCHES because you've violated patents 728917 9387128 and 823823 and insert more random numbers here. Startup went through them methodically and showed they hadn't. Multinational retorted WE HAVE THOUSANDS OF PATENTS SO IF YOU HAVEN'T VIOLATED THOSE YOU HAVE VIOLATED SOMETHING ELSE SO GIVE US MONEY YOU BITCHES. Startup gave up and wrote multinational a big check. https://www.amazon.com/Math-Yo...
Software Patents are a racket https://en.wikipedia.org/wiki/...
This is all predicated on "Language" not being patent-able. My software patent did not specify a language that was used or include source code. If this holds up, are functioning devices the only thing that can be patented? There is no requirement to provide source code with your patent application (or machine code either)...
I claim magic smoke as a key component of any electrical device. (programmable or not).
Hurricane went bye-bye... still a windy day by the Beach
Plenty of prominent pro-patent plaintiffs protest this proclamation!
Software is an intellectual creation, so it must have the same protection as other creations of the same kind. For an example, music or literature. E.g. if someone copies a chess engine (not in the public domain) and tries to profit from it, he/she should credit and pay the creator.
You're saying that what you're PROTECTING is the language used to describe the invention. As such, design patents (e.g. buttons, curved corners) etc. aren't affected. Mechanical patents also.
But patenting "writing a bit of software to do X", for any particular X, which is what software patents are about would be like trying to patent "using English to describe this procedure". Which is - quite rightly - unprotectable.
End result is good, precedent is bad.
Software is not just language. In it's end form software is a configuration of electronic switches that creates a unique output. Hardly comparable to Chaucer.
This would have more impact than the presidential election. Software patents are a shackle on all programmers outside of megacorps that hold the patents.
Taking guns away from the 99% gives the 1% 100% of the power.
Copyrights give lower level of protection for lower level of innovation and creativity. Whereas patents give higher level of protection for a much higher level of innovation. [...] As a creator, I want the strongest protection, whatever is applicable.
After twenty years, patents give zero protection.
If someone reverse engineers your software and then re-releases it as his own I'm guessing you can still sue for damages.
On what legal basis, other than patent infringement?
Nonliteral copying. It worked for The Tetris Company.
Personally, I'm OK with software being patentable provided a couple of changes to the way they are currently awarded. First, a software patent must be truly novel to be patented. Taking something we already did without computers, and making a program that automates it should not be grounds for copyright. Also, taking something that programmers have been doing for decades and all of a sudden deciding to patent it shouldn't be awarded a patent. Perhaps the patent office should hire some actual people versed in software and computer systems development to help determine of some new patent application is actually something we haven't all been doing for the last 20 years.
Secondly, a fully working codebase should be submitted with the patent application such that, when the patent is expired, we actually have a record as to how the patented software was actually implemented. You shouldn't just be able to describe what the software does to be awarded a patent. A fully working code base must be presented so that the patent office can determine that you've actually done something novel and that you've actually made software that does what you say it does.
Thirdly, software patents should be shortened to make up for the fact that software evolves at such a fast pace. 5 years should probably do it.
Personally, I think all patents should be shortened. The world moves at a much faster pace than it did 100 years ago. It's completely possible to come up with a new invention and have worldwide adoption within 2 years, and the product even often becomes obsolete within 5 years. Maybe something like apply for patent, you have 5 years to bring it to market. If you don't have a significant marketable product, then patent expires. If you have a product, you get another 5 years to sell it. Maximum patent length is 10 years.
Anthropic principle: We see the universe the way it is because if it were different we would not be here to see it.
I'd best run off to the patent office really quick to patent "Romance novels
I think a business actually tried "plot patents" and got shot down. See "What's the Story with Storyline Patents" by Ben Manevitz.
Hey it's first-to-file - who gives a fuck that she died after spending 50 years 'inventing' romance novels before I got the patent right ?
The "first to file" change affects only "interference", or conflicts between two patent applications. It does not diminish requirements under "novelty", or conflicts between a patent and published documents in the prior art.
Copyright written material that can't be transformed into real things
Suppose you were an idiot. And suppose you were a member of congress. But then I repeat myself. -- Mark Twain
A world without software patents? WOW, software would probably jump 10 years into the future overnight!
No, the firmware on the device.
Software is just a set of instructions, the ruling is simply acknowledging that. You can patent a multi-tool, you can't patent how to use the pliers on the multi-tool.
Knowledge = Power
P= W/t
t=Money
Money = Work/Knowledge so the less you know the more you make
The thinking behind having a patent law are roughly as follows (apologies for huge post, BTW)...
Innovation is discouraged where people who innovate, and pay costs for innovation, have their market stolen by others who copy them; or who are required to keep commercial secrets, running the risks of betrayal, or of trade secrets dying with them inventor (reputed to be what happened with the 'purple of Cassius' deep red stained glass).
The innovation may not necessarily be 'invention' as we know it. if you bought new techniques into your country by studying what people were doing abroad, you deserved to recoup your research costs over a finite time. You could patent an idea in the UK that had been patented elsewhere up until 1968. This is not a UK eccentricity - before international patent treaties, many other countries had a similar approach. So, the idea that a patent was something that exclusively covers something that you thought up is just about 50 years old.
The idea that you could only patent a solid object or a physical process is more recent. This change happened about 1985 to 1995. People could patent something physical, but the physical thing could include a programmed processor. Then people tried to patent the particulars of the processing side, or patent the program as stored on memory as a physical thing, usually as an additional claim as an alternative to some dedicated processor which could be patented under the previous law. I was working in Canon on patents at the time, and saw it happen bit by bit.
There is no abstract reason why patenting a non-physical thing such as an algorithm should necessarily be a bad thing. In practice, there was relatively little established prior art experience, so cunning people were able to patent things that have been common knowledge for a long time, but have no known inventor. Again, this is not new: the Gillette company was threatened in 1913 by a latter-day patent troll patenting their safety razor, which was not protected in US law unless someone could find written evidence that was acceptable in court to prove that Gillette were the owners. Gillette won in the end, but the 'Gillette Defence' is still a term for the enormous cost of proving something in court even though everyone knows it.
The patent is a restrictive rule: it restricts the rights of everyone but the inventor. We may support such laws in the short term to encourage invention and innovation, but this support should always be tempered by a reluctance to restrict the rights of others. There are exceptions to patent law that allow people to use specific drugs for other problems not covered by the original patent. This is intended to allow re-use of existing compounds, rather than requiring the invention of a second-best compound to get around the existing patents.
In then end, the case for or against allowing software patents hangs on whether they do more harm than good. The experiment since they came in is almost exclusively against them. Software is usually well-protected by obscurity for several years because reverse engineering is hard. An imitation product will always lag behind the true one, provided the product is still being developed. If you wanted a logical argument against software patents, you might argue that the Church-Turing thesis covered a machine that could calculate anything that was calculable, and so should anticipate and cover all possible programs. This judge is arguing from a different direction, but the argument has similarities, but with the human mind is replacing the Turing-complete machine, and language is replacing algorithms. Judges can't just call laws into existence, even on the grounds of extreme obviousness, but they can put put ideas such as this, and they will become law if they stand the test of time.
Let's all hope they do.
Where is software patentable?
It has been in the US until recently, though they seem reluctant to declare that it's ended. It never has been in the EU.
How about elsewhere?
Buy that man a drink
Comment removed based on user account deletion
Would this require software companies to open-source non-hardware specific software?
Isn't it weird that a single piece of software can be protected by patents, copyrights and trade secrets at the same time?
Richard Stallman has been advocating this for some time. Here is an example in a Wired article from 2012.
I thought it was called IP, INTELLECTUAL property.
The patent system isn't in place to keep B from profiting from A. The patent system is in place to, and I quote,
So first, to address your concern: can software authors profit from a truly new software idea without software patents? Sure we can. The software industry thrived prior to software patents. We can see by the "limited times" portion of the above that unlimited profit was not the goal. The inventor was to benefit somewhat, so society could benefit. So the question I would ask here is, do patents really benefit all authors and inventors? I think it's pretty clear they benefit all wealthy authors and inventors, and screw the small ones sideways with barbed wire. But that's just my opinion - as a small author and inventor.
Second, without patents, can science and the useful arts progress without software patents? Same answer: Yes, and that was also made obvious by the time prior to software patents, and for that matter, by the progress made since then by those who have not availed themselves of the patent system.
Third, can you "secure for a limited time the exclusive right to software author's respective writings and discoveries"? Yes. Copyright takes care of the writing end, and rather overwhelmingly at this point. You wrote the c code, and if someone takes it, you can show that. In addition, a new invention can't be reverse engineered until it's public, which points emphasizes the value of both trade secret and secure development.
Finally, I contend that patents, as clumsy, difficult, expensive legal procedures prone to repeated trips through the courts, are a tool that provide considerably more leverage to large, wealthy players than to "authors and inventors", and as such, they do more harm to the general level of creativity and useful conceptual churn than they are worth to society in general, which is clearly the actual goal of the above constitutional clause, as specified by the opening: "to promote the Progress of Science and useful Arts".
I think the judge has it right.
Sadly, this was a concurring opinion, not a majority opinion, and as such it has no legal weight. Those of us who agree can only hope that his concurrence serves as a springboard for (eventually) convincing the others on his bench, or that the case is appealed to a higher court, and such convincing happens at that level, despite being completely free of incoming legal weight. I wouldn't hold my breath, frankly. Big money has a way of tilting the playing field rather consistently. But it's a single ray of light in an otherwise very dark situation, and I'm happy to admire it.
I've fallen off your lawn, and I can't get up.
The GPL does not encourage copying and sharing. The GPL is a source of discouragement: it serves to lock out various kinds of sharing, specifically, if I add something to the code, I cannot share the results of that work unless I give away my work on it. It's nothing to do with the sharing of what was out there in the first place; that is in no way affected in its ability to be shared or copied if I add something and do whatever with it.
What the GPL actually accomplishes is say that "here is some code; we give it to you under the condition that you are coerced into giving away what you write as well." It's not about sharing the original code; it's about sharing any new work product of the recipient WRT that code. It's free as in "I'll give you this, but only if you give me anything back that you enhance or change if you want to share or sell", with the coercive addition of "if you don't give me back anything you enhance or change and you attempt to share or sell, you can be dragged through the legal system naked, backwards and across broken glass."
As a software author, I consider the GPL a neon-lit sign to "stay away, stay far away." As someone who actually wants my work to be shared, I release it with no conditions on what you may do with what I wrote, or anything you might add or change, except that you can't say that I, and others, can't be restrained in any way from continuing to share what I wrote freely. Because then my code will actually be free to share. I make no representation about, or claim upon, your code -- because that would be a dick move. Which, as no doubt you see coming, is exactly what I consider the GPL.
I've fallen off your lawn, and I can't get up.
Then his statement that software is a "precursor to technology rather than technology itself" totally hosed his argument. Perhaps his next argument will be that generic computers can't be patented either.
If software can't be patented, donations can be made to create a special law that allows those patents.
I understand how some people hate software patents because of the trouble patent trolls cause by dragging everyone to court. But how do you protect the little guy who spends a lot of time and effort to build something novel only to have some big company like Microsoft or Apple steal the idea and put them out of business the minute they start to get some traction in the market? It is amazing how something becomes 'obvious' after someone builds it for the first time; yet no one did for decades after it was possible to do so. Someone can pour their life savings and years of work into getting a small startup off the ground. It is a huge risk so why would anyone do it if it can be stolen away? If you don't protect the rewards for innovation, why would you be surprised if innovation slows or stops completely?
and those behind that will just continue creating more and more roadblocks for innovators, not fewer.
and a seat on the bench (I'm a patent lawyer).
When I was in college, software was considered unpatentable, because a software program is an algorithm, and algorithms were unpatentable because they are essentially a "law of nature" or "scientific discovery". At some point the law changed to accept "business method" patents (which led to the "with a computer" patents). Imagine if someone had patented the concept of "an interrupt" or "DMA" or "UART", how everything would be completely incompatible - or there would be a small handful of oligarchies running hardware just as they do software. Oddly enough, at the same time as software patents were being enforced, Intel lost its case that its 8080 instruction set was patentable; the finding split the difference between the DESCRIPTION of the instruction set and the IMPLEMENTATION. So direct cloning of an x86 chip would be prohibited, but making a new chip that implemented the same instruction set (and a few more besides) allowed Zilog to make the Z80 just slightly better than - and upwardly compatible with - the 8080. This begat CP/M, which begat the personal computer industry, which was brilliantly co-opted by the IBM Personal Computer (note the capital letters, that makes it COMPLETELY different). And then in turn IBM lost control of the "IBM-compatible" computer market, which at this point is defined by the motherboard specification from the *software* company.
or proof through independent replication of the patented item via the patent indicates that most patents should be deemed invalid even if they ARE for a patented object, since most patents are actually broken forms of the 'protected invention' as produced.
The entire point of the patent system was to ensure independent replication of a patented mechanism or device could be produced upon expiration of the monopoly period, which hasn't been true for most patented objects in over a hundred years.
Smokey Yunick is famous for bragging that the patents on the hot air engine he and another guy were working on were incomplete (he claimed trivially, so anyone in the field could figure it out, but a clear violation of patent law!) There are dozens or hundreds of other similiar violations of patent law going on every year. These violators need to be punished with at minimum fines and a revised patent application that is verifiably accurate to their produced items, or if the violation was so long ago that the patent has expired, then forfeiture of all patent proceeds to be returned to licensors, or the patent office if licensors can no longer be found.
Yes, I'm sure. I have no problem with B profiting off A's work, as long as A is rewarded if that's the idea/invention model A wishes to use, and society agrees to hand over X of value for Y invention / idea.
I get the impression that you are offended by people doing well if they didn't specifically do work to do well. I am not. I am offended by people prevented from doing well because others put up artificial barriers in a society that, at root, has more than enough largess for everyone to do well.
If you invent something, and you want to monetize it, I wish you well. I don't wish you the ability to prevent others from doing well. Clear?
I've fallen off your lawn, and I can't get up.
Dissolution, even?
I would bet a million bucks that it will be over ruled.
What took you so long to go public Judge? We have stagnated under these ridiculous software patents, ask Dr. James Baker how well software patents worked for him.
Sorry, teleporters just kill you and then make a copy. A perfect, soul-less copy.
Speaking as an idea / product creator (of a considerable number of new things, BTW), I think it's perfectly reasonable to monetize an idea or discovery such that it benefits society at the same time that it benefits you substantially. I don't think it's a net positive for society if you act to restrain others from acting to benefit society.
No one is a slave in such circumstances. If you decide not to do X, no one is forcing you to. If you do, then by all means, get it out there and make a reasonable amount off it if that's practical. if the idea is truly of great magnitude, it won't be trivially reproducible. If it is simply a clever, basic realization, it will. In the former case, it is more deserving of reward, as it took more work, and it will be that much easier to monetize for those very reasons, assuming you don't actually hand out the source code and/or the theory; in the latter, anyone else in a similar position might have come up with it, and to me, that makes it of very little value in the first place. XOR a cursor onto a screen? Oy.
There's another thing. Software is a lot more like writing in that the hard infrastructure required can be close to zero (food, shelter and environmental control.) Whereas if you make hardware, the investment is almost always significant, and often is required to be very significant. In such a case, more protection seems reasonable to me, or those things simply won't get done. Whereas software... we already know that software is generated in massive reams under almost any imaginable set of circumstances, no protection seems to be required at all. Not that protection doesn't confer additional benefits, it does; but it clearly isn't required to secure the advances the constitution speaks of.
I've fallen off your lawn, and I can't get up.
Most of the things we are willing to give our money for were once only a thought in someone's mind. Going from mind to finished product is a long and hard road, filled with failures implementing even very good ideas. Do you really think mankind could have progressed as it did in the last 100 years if those insightful people could not profit greatly from their risks and efforts?
For a pro-patent judge to entirely reverse a long-standing judicial opinion is bad enough. To do it based upon the fundamentals of patent law is much worse. Where has this judge been? When you form a judicial opinion on individual patent applications, the fundamentals are supposed to be considered settled. The judge only has to consider the fundamentals once, or indeed never if higher courts have already ruled.
The big push to patent everything that started around the turn of the century lead to not only software patents but also process patents - both of which are evil because they suppress innovation by the larger population, effectively blocking small businesses and individuals (who can't afford patents or to litigate patent disputes) from pursuing their ideas which before this ruling would run the risk of overlapping any number of patents in a web that was impossible in practical terms to identify fully.
Some here have argued that not having patents allows others to take your ideas and benefit from it. But there is nothing that says you have to open source your code. You can keep your code private - in which case others would need to develop their own solutions. To the uninformed that is called 'competition' and is a good thing for the market and your customers.
Overall - the good of being free of patent litigation for software outweighs any good achieved through patents by patent trolls and the litigation we've seen. The efforts in litigation add nothing in terms of competition or creation of new and better products for customers - and is a net drain on everyone except the pocketbook of the lawyers involved. I am happy to see some sanity is starting to prevail on this subject.
Lodragan Draoidh
The more you explain it, the more I don't understand it. - Mark Twain
What about the SMALL ARTIST? They create songs and the bigger players/studios can just copy the tune -- in fact it is extremely easy for movies, TV, and anybody else to copy the tune or simply a part of the tune.
So... copyright exists so the kids of some dead artist can sue some other artist because a few seconds of similarity between songs.
It's about time a judge finally learned something. Any honest CS or linguist has been saying for decades that software is a language. You can't patent a plot device but that is what we are doing.... along with owning biological discoveries. Claiming that progress wouldn't happen, completely forgetting how much better it was before we became crippled in restrictions, added costs and lawsuits.
Democracy Now! - uncensored, anti-establishment news
English isn't patented, but books are, articles are, any form of published writing can be copyrighted. If we're using similar logic for computing, then you may not be able to patent programming languages, but you can patent a result of a comprised set of written code.
people patent techniques. for example, signal processing technologies. it makes no difference to them whether you implement them in hardware, or software.
if by 'software patents' you mean techniques for which software is the only expression, and that there is no underlying idea, then say that.
As an agnostic, dyslexic, insomniac, I stay up all night wondering if there really is a dog!
'Imagine if someone had patented the concept of "an interrupt" or "DMA" or "UART"'
Other than the people who did patent UARTs and DMA systems?
The problem with most arguments against software patents specifically that that they are made by people who cannot supply a rigorous definition hardware and software.
I can start with the same RTL source and produce the following systems:
1a. RTL loaded into a simulator and run against a canned data file.
1b. RTL loaded into a simulator and run with a breakout box for real asynchronous i/o
2. RTL compiled to a native binary, run with a) canned data file and b) i/o breakout box
3. RTL synthesized to a gate level netlist and a) run in an STA with canned data
4. RTL synthesized to a device level netlist and run in a circuit simulator
5. RTL compile to FPGA programming and loaded into a hardware emulator with real i/o
6. RTL synthesized, placed, routed, fabricated, and packaged; and run in a system with real i/o.
Which of these implementations are patentable? All? None? Is the original RTL patentable? If it is not but some of the implementations are, at what point does it become patentable?
Even here, that average poster has no experience with creating hardware and thus never thinks very hard about what it is. What is the difference between hardware and software? If you cannot say, then you cannot reject just software patents.
This concurring opinion did not get enough votes (only 1 of 3) to become law. It is a demo of a stance the court could adopt some day in another case.
When a proposal like this doesn't get adopted, they call it dicta.
"We reject as false the choice between our safety and our ideals." --The American President (20.1.2009)
I remember the roots of both of these issues. When I started programming, software was not patentable. We wrote heuristic Mainframe software that produced physical layouts for microchips from the logical design specifications. The company fought to get it protected by patents.
The company also decided to build the PC using outside vendors for the microprocessor and operating system, which led to anyone being able to clone the PC.