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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."
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.
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.
"software is "a form of language," which we don't patent: "
No, we copyright it. And copyrights last forever...
(so long as Disney has nickel to bribe congress to extend copyright laws)
No sig today...
As a developer, I'm okay with that.
It means I can implement the best algorithm I can imagine as long as I take the time to implement it myself.
We no longer have to invent contrived ways of to make algorithms not look like the most obvious solution just because somebody patented it.
Patents are bad for makers, copyrights are bad for users.
Slashdot social media options: AIM, ICQ, Yahoo, Jabber and Mobile Text. Why no MySpace?
Patents are bad for makers, copyrights are bad for users.
Copyrights aren't inherently bad for users because they can be turned into copylefts. They are what powers the GPL. The user needs Free Software — not mere Open Source, which only means you can see the source, and does not tell you what you can do with it. Without software patents, Free Software would only be more powerful, and capable of doing more of what the user needs.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Have you seen the wars between Sun/Oracle over the Java API? Not even Java code, the Java API.
Bottom line: Copyright still involves lawyers and lawyers can think up reasons to make you miserable no matter what common sense says.
b) Usually the lawyers with most funding will win.
No sig today...
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.
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.
And there is another problem with software patents, and this is, what Judge Mayer was pointing out: Describing what a program is supposed to do is a far cry from actually implementing it. Only the actual implementation running on a universal purpose computer does affect the physical world. Software patents thus are merely a wishlist of what a conceived program shall do on an universal computer. The task of actually implementing them would still be a necessary, creative act. This is quite different from a patented mechanism, where the patent application actually contains a full description how to built the mechanism, e.g. the complete code.
Federal judges are appointed for life, they aren't elected.
In order to copyright it you have to publish. Binaries aren't subject to copyright.
Not true, in the U.S. something is copyrighted the moment it is created.
In order to get statutory damages and attorney fees, a work must be registered with the Copyright office.
17 U.S. Code 412 - Registration as prerequisite to certain remedies for infringement
In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for—
(1)
any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2)
any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
That doesn't follow. A patent is described using an expression of language, but you're patenting the invention being described, not the description itself. So you can still patent stuff, you just can't patent your patent of the things you patent.
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/...
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.
>Any half-assed hacker can reverse engineer your code
Reverse engineering is, in fact, one of the hardest forms of engineering and projects that reverse engineer are generally filled with some of the smartest brains we have- because it's very hard. You think the wine devs are idiots ? Yet it took them more than decade to get out of alpha !
>He can then replicate your software in 1/10th the time it took you to develop your software
If what my software does is so simple that somebody can replicate it in 1/10th the time it took me to do it - then he's the better programmer and he deserves to win in the market place. My best defense, in fact, is to use a free software license in the first place - so it's to his benefit to rather add his features to *my* product where we can both profit than to go and create his own. Even then, sooner or later even the greatest code gets replaced by better stuff. By your reasoning - it was a horrible thing that nginx was developed because apache came first ? The fact that nginx does the core jobs apache did with a far more elegant design and has become the dominant product by being better doesn't matter ?
You must be truly incompetent as a programmer if you are *this* afraid to compete on the merits of your product - that even with a first-to-market advantage you are this convinced any "half-assed-hacker" can make something better than you did... it sounds to me like, rather than wanting patents to put a dead-weight on the global software economy - you may be better off seeking a different career, one more suited to your particular talents - none of which, apparently, involve writing software.
>exactly the the reason patents exist
No. That is not at all why patents exist. The reason patents exist is right there in the law. To promote open disclosure of how an invention works. Quite the opposite of what you think - it's to make sure you will have MORE competitors than you otherwise would. The reward for letting the world copy your invention, is having a brief time where nobody is allowed to. One of the major problems with software patents it the absolute lack of disclosure actually - I've yet to read a software patent include full source for an implementation of the idea - and nothing less than a working source implementation can count as 'blueprints' for a software program.
>Software is not languages. Software uses languages
Novels are not languages. Novels *use* languages... so by your reckoning I'd best run off to the patent office really quick to patent "Romance novels. Soft-porn for housewives with sloppy plotlines and lots of sex scenes using vague euphemisms" before somebody else does ! If nothing else - I may be able to sue Barbara Cartland's estate to oblivion. 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 ?
> you can program software using 1s and 0s. Which language was used there?
That would be mathematics. Which is, in fact, a language - and unpatentable all by itself anyway. You may want to study computing theory - if you think software is anything but NOT pure and unadulterated mathematics on every level it's because you don't actually know what software is. Only what we try very hard to make it pretend to be.
> Technology often consists of processing steps, which are patentable
Having to disclose the steps involved in using a machine does not make the steps themselves patentable. Which is the most charitable way to interpret the complete bullshit you just spouted. No, 'technology' consists of real, physical things - machines and devices. Processing steps - a completely abstract set of ideas is not and has never been patentable, software was an abberation in this regard - and the Alice verdict was basically the supreme court telling you just that.
> and so should software.
So what are you ? Patent lawyer ? Patent troll ? Since those are the *only* people who have ever benefited from software patents. No prog
Unicode killed the ASCII-art *
Thus, to have Judge Haldane Mayer do an about-face on Software Patents is Huuuge, in part because of the influence the Federal Court of Appeals has on lower courts, but mostly since it shows that learning can take place at that level, when presented with cogent arguments.
Perhaps there is hope, after all.
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.
It doesn't. This change is based on a supreme court ruling from last year. Prior to that the supreme court precedent was different.
CIvil cases don't get retroactively affected by a change in the judicial interpretation of the law - it only affects new cases going forward.
Unicode killed the ASCII-art *
A patent should have enough detail that someone else can easily recreate the patented item.
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.
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.
Not to mention that oracle deliberately hid discussions left behind by sun pre-acquisition that granted google permission.
I could agree with this also. If you create yet another ecommerce system you should not be allowed to patent it.
If you create a deep learning algorithm that can classify human emotion accurately based on the video camera and microphone on a standard laptop or smartphone that should be patent-able. If you create an non-linear non-gradient based descent algorithm with general case performance better than something like GA that should also be patent-able.
The kind of stuff I see as patent-able is the stuff that takes engineers and scientists years to figure out and often a LOT of money and if we don't protect those ideas it will be harder to get more of them done. If universities can patent actual useful software algorithms and license it out they can use the money to fund more development.
Computer modeling for biotech drug manufacturing is HARD!
You can still patent an implementation of it, it just must be fully formed and described in the patent and include something other than software. The software by itself is not patentable.
I don't feel sorry for the rent seekers trying to prevent others from creating similar solutions. Not even in the slightest.
HBI's Law: Frequency of calling others Nazis is directly correlated with the likelihood of the accuser being Communist.
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.
Still not *nearly* as bad as patents though. Even a copyrightable API simply means you can stop me from building a software library that's a drop-in replacement for yours. It stifles competition, but not innovation. Google could have easily made Dalvik use a different, but functionally equivalent, standard function library, it would have just made it that much more difficult for Java programmers to adapt to using it.
Patents mean you can stop me from distributing software that's completely my own design and work, even if I never knew your software existed, or even if you never wrote any software at all, just because it uses ideas that you also had, and managed to get accepted by the patent office.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
Thus, to have Judge Haldane Mayer do an about-face on Software Patents is Huuuge, in part because of the influence the Federal Court of Appeals has on lower courts, but mostly since it shows that learning can take place at that level, when presented with cogent arguments.
Perhaps there is hope, after all.
It certainly is a good sign. The Alice ruling is key since it provides him with a basis for his opinion and the Appeals Court can use the SCOTUS decision and clarify and extend the boundaries of what is not patentable. Ultimately SCOTUS may have to weigh in on the boundaries established by the Appeals Court and say yay or nay. Which wold be good since there would be more clarity around patent law.
I'm a consultant - I convert gibberish into cash-flow.
Richard Stallman has been advocating this for some time. Here is an example in a Wired article from 2012.
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.
Yeah. It's too bad this was a concurring opinion rather than the majority opinion, and thus apparently doesn't establish precedent.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
And a boat cannot do a damned thing unless it is placed in a river. What does that have to do with anything?
Wrong.
A boat may not be useful without being placed in a body of water (ocean, lake, river, etc); but it can do something.
For instance, you can sit in it; you can run the engine(s) if there any are present; you can move it about using a trailer, fork lift, or other means. Alternatively, you could throw a party on it - if there is sufficient space, or even live on it - even out of water.
Comparatively, with software if it not compiled for a specific computer, then it is no more useful than a book - you can read it, but it cannot do a thing. Furthermore, software will never flip a bit in a computer processor or RAM (often the terminology used to make software patentable), it can only tell a computer processor to do so.
Truth is like the sun. You can shut it out for a time, but it ain't goin' away. - Elvis Presley (source: imdb.com)
Exactly - it encourages *you* to copy and share *your* code, with the incentive of being able to incorporate any and all the GPL code in the world if you do so. If you just want to leech off someone else's work without giving anything back, well that's what BSD and the pubic domain are for. The GPL and other share-alike licenses are used by those who don't want to support parasites.
It also encourages users to freely share the unmodified finished product, as it puts no obligations on them beyond pointing people to where to get the original (and source). But pretty much every Free and freeware license does that(possibly sans obligaion to point), so it's nothing special in that regard.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
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.