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The Rise and Rise of Software Patents
Dean Povey writes "LinuxJournal has a great article on the plethora of
bogus software patents and their possible
effects on the Open Source community." This isn't "new" news (it was published Aug. 10), and a lot has aleady been written on the subject, but this is one of the most thoughtful articles I've seen about software patents, and their effects on Linux and free software development in general.
A few thing are needed:
The Patent and Trademark Office (PTO) needs to be better funded from the Federal Treasury. One big reason why patent searches are so expensive is the PTO is dependant on user fees for operating expenses. This benefits the big companies, hurts the small companies, and locks out the Free Software developer entirely. They also need to improve their library of unpatented prior art, which will cost them money. Whether or not you think software patents should be abolished, this is necessary, to protect against things such as software patents masquerading as hardware patents. The best way to encourage improved PTO funding is by contacting your Congressmen and Senators.
The PTO needs to know that it is not enforcing its own rules properly, and it needs to clean up its act. Congress can't really help here, this is a matter of the executive branch. Write to the Commissioner of the PTO (Q. Todd Dickenson), his boss, the Secretary of Commerce (William M. Daley), or his boss the President of the United States (some guy from Arkansas). Apparently the PTO has been making some changes since the Compton's Multimedia Patent embarrassment, but some encouragement from the people would be helpful. Again, even if you feel software patents should be abolished, that won't take the PTO out of the picture, and they still need to follow their procedures better.
Lastly, if you do want software patents abolished, make sure to do the above, and join and support the League for Programming Freedom. Collective effort is critical for any headway to be made here, and the LPF is the best focus for such effort out there.
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Open mind, insert foot.
1) Publish your idea. You personally have one year from that date to file for a patent. No one else can (legally) obtain one by filing after that date. If someone has filed for one before that date, or published prior to you and files within a year of that, all bets are off.
2) People keep suggesting this sort of thing, but I have to wonder if they really understand how expensive it is to maintain a patent portfolio. Defending a patent portfolio can cost millions per year. If said foundation has a patent that Microsoft wants, do you really think they're going to negotiate cross-licensing when they can just file a couple of suits, bankrupt you, and use the patented processes with impunity?
I believe there is a better idea. It's said that there is nothing new under the sun; ie, if you've thought of something there is a very high probability that you weren't the first. Use the power of open source to find the prior art. Maintain a database of it. Whenever a patent that seems ludicrous is filed, or whenever a company uses one that seems so, get in the prior art database and find out where it's been done before. I've seen several estimates that >80% of all granted patents are invalid on the grounds of prior art; it's just that most of the time, nobody's trying very hard to find it. Set the hundreds of thousands of eyes (and brains) of the open source community on the problem, and you'll find that pretty soon a piece of software will have to be special indeed to receive patent protection.
I agree with you that proportional licensing is not practical, I was just trying to suggest that *some* modification might be able to preserve the interests of both those who deserve protection for their ideas, and those who feel threatened by patents.
Nor did I mean "genius" literally, just that there should be a larger component of inspiration than perspiration in a patent. I think we actually agree that the bar should be much higher than it is now.
Some food for thought: what will be the patentability of genetic algorithms? If one genetic algorithm to factor large composites is patented does that make an independently evolved genetic algorithm subject to patent fees? Where is the inventor who has a right to their hard won ideas in this picture? Just suggesting that patent laws need to change in the light of new develoments in how we accomplish and organize our work.
Jim
Well, that's kind of the point of the "non-obvious" clause. Many of the ideas that are considered routine now, were not considered at all twenty years ago. Within the next ten years, there WILL be a new basic principle in this area of technology (I just don't know what it is yet...). The person or group who does come up with it deserves some level of protection for the invention that they have devised.
Slashdot is entertaining like pro wrestling is entertaining
Have you heard the saying: "I could indict a ham sandwich?" The same could be said of patents. You file. The examiniers do a perfunctory (they would complain I'm being too harsh, but their comments were 90% nonsensical) search on existing patents. If the keywords match, they make you explain to them why these patents don't read on your patent. I didn't complain, because then they might assign some hardass examiner who knows something. I read piles of patents, thousands of pages of badly written sludge, and dutifully explained why none of it mattered. This goes on for several rounds.
Maybe you take a trip down to D.C. (actually the Patent Office, which you would think would be in one of those temple-like buildings on the Mall is in a non-descript office park across the river in Virginia) to explain your claims in person. Maybe this gets the patent to issue, maybe not.
There is very little critical examination regarding whether a patent should issue. So as long as your patent lawyer is good enough to kick you under the table any time you might utter the word "obviously" you will eventually get your patent.
Ah, but what if patent applications were posted on the Internet, and smart /.'ers could comment on the egregious ones? That would take a radical change in the patent process. Right now, patents in process are secret. That way, if the patent doesn't issue, the inventor can protect his invention with other means, secrecy among them.
This is only the beginning. Can you enforce the patent? Can you afford to? Is the infringer a deep pockets target that can be bullied into licensing your patent, so you can then go on to publicize that license and scare some smaller fish into paying up?
Do you have just one patent? Several? Enough that even a rich company would think twice about trying to litigate them all away? Can you afford to defend them? Is the market window going to close before litigation is complete? This is a game big companys know how to play, and except for some macroeconomic friction is the form of higher lawyer bill than would be optimal, it works.
Nota bene: Nothing about this has anything to with whether the patent should issue by any measure of sensible consideration. As long as your field is obscure enough to fly under the radar of the better examiners, you can patent that ham sandwich. A lot of garbage slips through, more than could possibly get cleaned up in litigation. So you have this ugly overhang of a lot of patent violations out there waiting to ambush worthy efforts like open source software, where litigation is absolutely the worst forum for resolving the issues. And if you put the pickles and mustard under the ham, you owe me a small per-sandwich fee, slightly more for hoagy rolls.
I wrote parts of this stuff
I'm just going to send them an email saying that software patents are bad and they should outlaw them, and I'm going to sign it "Chandon Seldon, 15 year old computer geek and free software zealot".
Software patents should be illegal within hours! =P
-- The act of censorship is always worse than whatever is being censored. Always.
There's no need to legally challenge the patent with the PTO. You simply program and publish like you always do, and wait until the patent holder threatens to sue you. After they have lost the suit or chickened out, the patent is effectively emasculated.
And of course, during the suit, you keep your legal costs at a minimum by using volunteer free software experts, reading a good legal advice book and avoiding lawyers.
--
Lacking <sarcasm> tags,
That's not the only grind we should have. When GATT was signed, it automatically extended the life of patents from 17 years to 20 years, thus amending the constitution in unconstitutional ways. Why has this not been addressed by the supreme court???
That would make so-called 1989 software patents available in six instead of eight years.
A couple of misconceptions here. First, as others have noted, there is no Constitutional requirement that patents lapse in seventeen years. The only Constitutional mandate wrt the patent system is that there must be one. As for the other poster who questioned the treaty-vs-legislation mechanism, the point is moot since
Secondly, the life of a patent has not been extended to twenty years from seventeen. What has happened is that an additional limitation has been added to cause patents to expire twenyt years after the date of filing if that is sooner than seventeen years after the date of issuance. This not only harmonizes the USA with the rest of the world, but also prevents the "submarine patent." (A recent example was the character who filed back in the 50s for a patent on optical storage of information. His lawyers kept it tied up in the USPTO for decades while they continually updated the claims, so that when it issued recently it covered CD media!)
Disclaimer: I am not a lawyer, don't play one on TV, nor on the Net. I do however hold several patents and retain patent attorneys who keep me up to date on details like this.
Lacking <sarcasm> tags,
I think I will patent the process of applying for a patent. Anyone who applies for a patent will owe me a reasonable licensing fee of $10.
I think there are quite a few people here who would agree that software patents (not copyrights) suck big-time. It's likely, though, that they aren't going away any time in the foreseeable future. With that in mind, here's an idea.
Shouldn't the PTO just start start reviewing Patent applications a bit more thoroughly? If they did, and used a little bit of smarts, they'd easily get a bead on just who the patent squatters are. Earn yourself a history of patent squatting, and you've earnt yourself a priority drop on your next patent inspection. For each patent application that is turned down as obvious or prior art, the applicant receives a point. For each patent granted that is overturned by the legal system, the applicant recieves, say, ten points. Applications are then processed in reverse order of the number of points held by the applicant. The little guy who has no points gets his patent through quickly while the patent squatter has to wait, maybe years, for his patent. That would certainly discourage this abhorrent abuse patent law. It would take a little while to really kick in but it would work, surely.
Ahh - My eye!
The doctor said I'm not supposed to get Slashdot in it!
IMHO if the patents office of the USA has made the mistake of allowing patents even when prior art is present, why not patent the Graphical User Interface? Whoever was first (Apple or the X-window guys or whoever) can patent this leaving all others in the lurch. Anybody patented the concept of software yet? If not I'm applying! (Patent donated to the FSF)
I can throw myself at the ground, and miss.
Without a doubt, the Wright brothers rightly deserve their place in history of aviation. But, had they won their suit against Glenn Hammond Curtiss and other aviators, we probably wouldn't have the diversity nor innovations that has propelled the development of aerospace technology as we know it today.
The suit hinged on their patent for mechanically warping the wing which allowed the pilot to control the longitudinal axis in flight. In contrast, Curtiss, believing that wing-warping was inefficient and inevitably would be unpractical for larger airplanes to come, had designed the aileron which achieved the same effect by hinged sections that moved up or down.
To block Curtiss and other competitors, they attempted to extend the patent's coverage, by demanding royalties even though they had employed other mechanical means such as ailerons. Their reasoning was that the patent covered the principle of altering a wing's profile to effect a roll.
In effect, they wanted to enforce the right to collect on anything that allows control input to the wings. That way anyone, regardless of the method of changing the wing's profile, was in effect infringing on their patent. This more than anything else put a damper on development in the US for the 8 years that it took for the courts to deny that broad claim. Meanwhile, development continued unabated in other countries, even though the Wright brothers tried to fight that as well.
As the courts saw it, the Wright brothers' patent was about twisting the wing, resulting in a desired effect of natural law, and not about causation. Can you imagine the mechanical and technological requirements necessary to bank a 747 by twisting it's wings? Not impossible, but unlikely.
Now jump forward about 9 decades and once again, we see debates about the use of some kind of "exclusive" concept. Patent laws do need reform, they were founded on the needs of the industrial revolution which is generally capital and labor intensive with regards to infrastructure and investments. But now, all it takes is a guy and a computer, and if he can get to the patent office first, he can take a free ride on the backs of others. Almost everyday, we hear about more nonsense that have nothing to do with revolutionizing and/or sustaining a digital world.
No need to repeat the Apple story, but didn't they almost go out of business suing clone makers? Now they want to sue makers of IMac look alikes, in which the only passing resemblance is a colorful translucent case.
If they win, maybe the company that made the first off-white case should jump on that gravy train. And maybe, I should go out and patent my wooden case, keyboard and flat panel monitor. That way if someone designs a wooden shell/housing for a mouse or any other hardware, I'll get a piece of that action!!!
**To know a thing you have to trust what you know, and all that you know, and as far as you know in whatever direction y
And then there are those who find lots of room for complaint, but yet do nothing (including the simple act of voting) to change things.
Why does everyone say this? Voting doesn't change a damn thing. You've got an election system that heavily favors the two major parties, two major parties that are mostly indistinguishable on the important issues, a presidential election in which the people's vote doesn't really matter, and a campaign finance system that practically encourages corruption.
The fact is, if you can't get a large chunk of the country to hear you, you don't have a prayer of making a difference. If you can't get yourself on tv where people will notice you, you can't be heard. The current system makes it real tough to be heard unless you have a big pile of cash. I guess my real question is: Who are we gonna vote for that will make a difference? We end up throwing away our vote because the election system sucks.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Algorithms are not "mathematical formulas"...they are *structures* that are composed from primitives (i.e. the basic instructions of various programming languages)
A "mathematical formula" is a structure composed from primitives (i.e. the basic symbols used in mathmatics.) Expand your horizons, learn some of the theoretical basis of computer science, and you'll see that algoritms are quite clearly unpatentable.
If a company sends you a threatening letter, publish it on your web site and then write right back. Tell them that they will never be able to recover money from you since you don't have any, but that you will fight the case till the end, without a lawyer but with massive research support by the free software community regarding prior art and obviousness. Make clear that they will lose money and goodwill if they dare to file a suit, and that they ultimately must lose.
Then spend an afternoon in the nearest law library. The law is not rocket science; lawyers are not needed.
I have personal experience that no company ever files suit against people without sufficient resources. They can do the math.
--
Just for fun, we also patented something, just to see how hard it is. Basically, it is an exercise in t-crossing and i-dotting -- the patent office is completely clueless. We got a patent that probably should not have been granted because we followed the procedure.
We did both of these things in response to a lawsuit threatened by New York Institute of Technology. You see, they had patented 3D keyframe animation. And the patent looked reasonably solid, there was no way that we could get around it. They had even cited almost all of the prior art that we thought invalidated the patent...and because of that we couldn't use that against them. They had sent letters to us, to Electric Image, to Wavefront, many of the players in computer graphics at the time.
The one piece of prior art that they hadn't cited was an NYIT document. It was presented at the Siggraph conference on August 4, 1982. The patent was filed August 3, 1983. You recall from the above comment that you have one year to file, and it appeared that they had sneaked in.
But...after six months of fighting this, I realized that while the paper was presented on Tuesday -- the proceedings were available on Sunday, the 2nd. A year plus a day. And so the series of increasingly threatening letters from NYIT stopped with a thunderous silence.
We probably could have made a few million from our morph algorithm (as others later did) but I still feel that we did the right thing. thad
I love Mondays. On a Monday, anything is possible.
Algorithms are formalized ways of thinking. And they are mathematical objects just as other "formulas" (I don't know of a precise definition of the word "formula"). :) )
For example, you can ask if an algorithm terminates etc. Might even be able to prove if it does or does not (though not by applying some general algorithm
A major problem with patents on algorithms is then
that it restricts your freedom to communicate your thoughts. This is particularly true for free software since (in my view) free software is, among other things, a way of showing other people ways of thinking - or ways to use their computers intelligently - and to encourage them to make improvements.
Restricting this freedom by allowing patents on algorithms is IMO a blatant infringement upon free speech.
"Features" such as a certain desktop layout or the "Save As" method are an entirely different thing. Here the guideline for patent laws should be "how do we encourage innovation/progress/etc." (Personally I think patents on these things are bad, too.)
This may be a wetware segfault, but...
Aren't intellectual property rights commercial rights? That is, rights to the sale of a good? I checked the US legal code and it does say that (without authority) making, using, offering to sell, and selling patented things are infringements of patents, but is this the way it _should_ be? I read somewhere that patent rights were only _supposed_ to cover the _sale_ of goods; as a matter of the theory of natural law/rights which the USA was founded upon.
I don't recall the history well enough, but Eli Whitney had patented the cotton gin and then tried to collect licensing fees from people who had seen one and privately built their own. The widespread copying for personal use was unstoppable either because it invalidated the patent (as obvious) or because the commercial right to the device didn't prohibit private construction and use.
This would obviously be a saving grace for free software since it is not sold, though service contracts or physical media are sold.
One more point I'd like to make regarding this. While you chose not to patent your morphing process, (admirable, btw, if it was to allow free use), a prior art database would be just as useful to those seeking to obtain a patent as it would to those fighting one. Wouldn't it be nice to know before you spend untold time and money on r&d that someone else had been there done that? About the only people it would hurt would be those who seek to patent a proven process and ride the royalty gravy train (and the number of firms in the U.S. doing this is staggering). I think we can all agree that plowing them under could only be a good thing.
- State-granted monopolies are morally repugnant (yes, I am a Libertarian).
- Even if there was some historical justification for patents in a earlier time when inventions (and inventors) were fewer, this no longer holds. In a world were there are many smart people around; simply knowing that something is possible is half-way there. Trade secrets are not the threat they used to be.
The many problems with patents are just easier to see when they are software patents - but they apply across the board.--
An esoteric scratched itch:
Homeworld Map Maker Tool
As Richard Stallman says, patent reform is not enough.
Also take a look at the League for Programming Freedom and freepatents.org.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Well, the point isn't so much that they won't charge to license their patents, but that they can charge if they wanted to pursue the matter. Just because the world in general has gotten lucky once doesn't mean we should ignore the problem.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
The free software community should really devise its own font standard, and design a renderer with proper subpixel antialiasing and millipoint precision... Hmm, guess what we've done :-)
So Microsoft can whip out its ClearType patent, right? That's why patents are bad. We could implement it another way, but it would still violate the overly broad patent (which should never have been granted in the first place because there is plenty of prior art in the case of ClearType). This crap will never end.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
>> >> I equate the freedom to program with the freedom of speech; IMO software patents are violating that freedom.
....
>> What if a sculptor said he equated freedom to assemble physical objects with freedom of expression? Would you accept that as an argument against patenting machines?
Wny not? Check out this URL:
http://www.freenation.org/fnf/a/f31l1.html
The first few paragraphs:
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A Dispute Among Libertarians
The status of intellectual property rights (copyrights, patents, and the like) is an issue that has long divided libertarians. Such libertarian luminaries as Herbert Spencer, Lysander Spooner, and Ayn Rand have been strong supporters of intellectual property rights. Thomas Jefferson, on the other hand, was ambivalent on the issue, while radical libertarians like Benjamin Tucker in the last century and Tom Palmer in the present one have rejected intellectual property rights altogether.
When libertarians of the first sort come across a purported intellectual property right, they see one more instance of an individual's rightful claim to the product of his labor. When libertarians of the second sort come across a purported intellectual property right, they see one more instance of undeserved monopoly privilege granted by government.
I used to be in the first group. Now I am in the second. I'd like to explain why I think intellectual property rights are unjustified, and how the legitimate ends currently sought through the expedient of intellectual property rights might be secured by other, voluntary means.
-----------------------------------------------
Makes a VERY strong case for abolishing all patents, copyrights, and the like
TANSTAAFL.
"A gun is a tool, Marian. No better, no worse than any other tool. An axe, a shovel, or anything." Shane (1953)
What is it that makes a patent "defensible?" I take it, then, that you can get a patent for less, but not a "defensible" patent.
In trying to stop intellectual crime, they have only succeeded in making it worse.
Realy simply, the Supreme Court should rule "Software is not patentable -> All binary data shall henceforth be copyrightable but not patentable"
This would make much more legal sense than the allowing software patents, at least in a "This will work cleanly" sense.
-- The act of censorship is always worse than whatever is being censored. Always.
Oh my god. They killed FreeType. Lawyer bastard scum strike again, and I didn't even notice.
Of course this doesn't stop me using FreeType since it has been released widely already, and you can't put it back in its box. What this does do is to stop me releasing any software I might have written based *around* FreeType. So it's lucky I never got around to writing my Truetype->RISC OS font converter, because I couldn't, now, distribute it.
Looking at these patents I don't know how enforcable they are, except that they are fairly obvious and are implemented in all recent font systems I know of. But it is not the legal enforcability that matters of course - just the threat of legal action is enough to kill a project. The little man cannot afford to go to court to fight a medium-sized company. And hence the law is useless.
This stinks. It cannot stand.
--
That's not the only grind we should have. When GATT was signed, it automatically extended the life of patents from 17 years to 20 years, thus amending the constitution in unconstitutional ways. Why has this not been addressed by the supreme court???
That would make so-called 1989 software patents available in six instead of eight years.
Secondly, the history of personal computers goes back to 1976, while mainframe technology goes back to the forties. When are granted patents going to be invalidated for technology that was already publically available or published?? I do not think that there have been exhaustive searches for some of the things that have been patented.
Third, maybe there needs to be an open-source IP protection group, that can test the validity of granted 'algorythm' patents. Maybe some of these patents are SO specific that a slight 'adjustment' would put them out of their coverage range.
Fourth, maybe Linux needs the linux community to not use that which is patented, but invent (and publish!) new technologies that are then freely available. It would seem to me that adoption would happen readily if they were cheaper than licensing a given 'patent'. Is there such a thing s a GNU patent??
Also, if we could get every 'linux' user to stop using a given technology and boycott some companies unfriendly to open source, couldn't that have some effect? You can not let the fear of patents stop open source development.
The site is called "BitLaw" and it focuses on law and technology (US only).
This "news" is five years old. Unisys gave up on the idea long ago. Why has it suddenly resurfaced as a big scare story?
I'm currently in the process of trying to patent a software invention that I developed. I believe that there's no fundamental reason why software should not be patentable -- software inventions are as useful, and require as much human igenuity as any other type of invention. In fact, the ease with which software can be reverse engineered makes patent protection even more important.
There have been many absurd software patents granted by PTO, but this indicates a lack of discrimination by the PTO, and not a fundamental objection against patenting software per se. The PTO just has to be more stringent and better informed.
I read complaints about how some routines cannot be implemented by free software projects because of patents. Well, this is what a patent is: a legalized monopolly. A monopoly does make things more expensive for non-monopoly holders; but this is a worthwhile tradeoff in return for greater technological innovation. Without patent protection, I'm not sure whether I would want to go ahead with my project, investing time and money in development.
I agree with you. However, the problem is that the patent office is overloaded with patent applications. They don't have time to thouroughly review every application given to them and/or to consult experts in the field from which the application comes, so they just approve nearly every application that comes into their offices with the mentality that the courts can decide whether the patent is valid. Unfortunately, letting the courts decide is very expensive to all parties involved. Big businesses can usually afford it. Small companies usually can't. For both, when faced with a lawsuit, it is almost always cheaper just to settle out of court. Some companies realize this, and they take out patents that they know are bogus, knowing that they can make a lot of money from companies who are willing to do anyting to avoid going to court.
If your web site uses GIF files, then Unisys wants $5000. Why isn't PNG more widely used yet?
(Reality reasserts itself sooner or later.)
The Slashdot audiance owes me BILLIONS in royalties
Actually, people try to make their patents overly broad because it's most profitable to them, regardless of the delay in the patent approval. It also happens in fields where the technology doesn't become obsolete in a short time. It happens because of the simple fact that people are greedy.
Also, if a patent is pending, isn't the inventor still protected? I realize no one likes lingering legal paperwork, but can't the inventor still proceed with the work while waiting for approval?
So...
Why doesn't somebody like, say, the FSF start making their own software patents? Then let's suppose they license these ideas as "free to use by any and all." Then supposing they stipulate that whoever uses such patented code must also re-distribute the code, free of cost.
Maybe that would help open up the source code for a lot of future projects.
I agree. After all, the patent laws were initiated back when technology took 20 years to advance. Now we see that technology outdates itself in 6 months. This being the case, it stands to reason, that technology patents should only hold for 6 months. Besides, if a company hasn't gotten far enough ahead of the 'pack' by then, they shouldn't be on the forefront of technology.
Lead, Follow, or GET OUT OF THE WAY!
Somehow this patent frantics are starting to look like Y2K or Armageddon freakies. Well Open Source has been on its highs for the last 10 years and it looks hard to see it dying.
The patent restrictions have shown a lot of minus but also plus. The 30s have shown a similar fever. Like the 90s, it was a time of crisis going parallel with one of the most inventive periods of History. And anyone who opens an History book will see that several "gold mine" patents turned into empty baskets. The social answer for such things was either turining into less but more affordable technologies or to "reinvent the wheel" in completely unexpected ways.
So it is hard that this patent frantic will turn into some Armageddon. Well at least on what concerns Open Source. Besides there are a lot of legalities that in fact may turn software patenting into an danger for its partisans.
Software patenting is typical in the US. Other countries don't support it. Yes US government tries to convince that soft needs to be patented. There are some laws going there and there about it. But there are some fundaments on making software (and even hardware) that logically contradicts patenting principles. Until now it seems that these principles are untouched in most of the World. Somehow even US legislation goes by these principles. It is not so well remarked but it is there.
Unfortunately US patenting organs seem to have done the second bolshevization in Human History. They managed to forget the moral principles. They clearly ignored legal regulations for giving patents. They have set up in a frantics of giving software patents much like the soviets printed rubles.
The result? In the computing world USA may become known as United Soviets of America. Software developers in an economical and political misery and a whole set of burrocrates fastening themselves in a labyrint of regulations counter-regulations, patents and patents and patents and patents.
However, considering the potential danger that this frantics may turn to US geopolitics, soon the federal and state organs will probably start to put some breaks on it. It will not be tomorrow but quite soon. Right now there is already a current of developers turning to other countries. They are a miserable number but significative by the fields they deal with. A little more and people will start thinking of Malta for software development. When this happens, then axes will start working in Washington. They are not stupid. Well, I think...
just have a page where a list of all software patents are categorized by topic/function/genre/whatever where people could roam through and find the ones that they violate?
Other than that, I agree with those who believe that software shouldn't be patentable, because, as good and clean of an idea the original one is/was, the task of maintaining that cleanness and orderlyness and preventing it from being abused/getting out of hand is such a task that I don't think it can be done. Not by people now, not by people before, not by people ever. It will _always_ be abused, somehow. That's just the way things are (though I'm not trying to be pessimistic here.. it just is inevitable, as far as I can see).
Insert mind here.
But it seems that others would be fools to do so (or be taking a big risk), because when the patent is granted, all their work becomes dependent on someone else's patent, someone who they've antagonized.
Well, isn't that why the words Patent Pending appear on so many products - as a warning to potential coattail riders?
There is no off postion on the genius switch. - David Letterman
I was recalling what an attorny's comment at the time GATT was passed (1995), and he said (at that time) that it was unconstitutional to use a treaty to change the length of patents, as that power is soley in the hands of congress, not a foreign power (in so many words). I have not kept up on patent law hapennings since then (And I do know now there has been alot)
I do not think that my ignorance is excusable. Every citizen should be cognizant that the Constitution is a working document that gives us the rights we live by. Without this personal valuation, we let others trample us with so much useless heresy. And then there are those who find lots of room for complaint, but yet do nothing (including the simple act of voting) to change things.
I am glad that others pay attention. Pray that I may do the same!
If somthing is patented in the US, and other countries don't agree it should be patented, the US is capible of being obnoxious.
The USA needs to be stopped before it gets further out of hand. (And yes, I'm saying this as a US citizen to someone who may be from Cuba =P )
-- The act of censorship is always worse than whatever is being censored. Always.
That solves 1 problem and creates 2 more.
Sicking the tax crazy politicians is evil, it's along the same lines as summoning the evil demon to fight your enimy, once the demon has been summoned...
The supreme court is not a body of politicians, they are a body that exists to prevent the politicans from doing lameness. The supreme court is our only defense against the onslaught of lame laws - It's just a question of convincing them that they need to rule that software patents are illegal.
-- The act of censorship is always worse than whatever is being censored. Always.
Sure, we all agree they should do that. But how are you going to convince the Supreme Court to do that?
I believe the whole problem lies in the Patent office not adhering to the requirements for granting patents: that they be non-obvious to a practitioner of the art.
--------- Webmaster, http://www.cpureview.com and
Really, this wouldn't even be disobediance, but what if a large portion of people in the software industry simply printed the article, signed their names at the bottom, and snail mailed them to the USPTO once a week until the nonsense stops (if ever). If they think they're choked in paperwork now...
Alternatly, each person submits a patent application for a blatantly obvious 'invention'. They HAVE to at least look at each and every patent submission, even if it comes without the required fees (and they have to reply that you must submit those fees for consideration). Just 'forget' to enclose the check and then decide not to patent....
Increased software patent registration and enforcement are simply the cost of Open Source growth. In the past, with closed source, software patents were far less of an issue, because there was usually no way to tell how a program did something. Now that we agree the internals of software should be exposed for all to examine and improve upon, there will have to be formal ways for designers to benefit from their innovations. You can't have it both ways, i.e. open access to all source code *and* no patent protection, unless you believe that the entire concept of intellectual property is obsolete, and I think that is a stretch by all but the most extremist views.
Algorithms are not "mathematical formulas"...they are *structures* that are composed from primitives (i.e. the basic instructions of various programming languages), and are thus no different than the mechanical assemblies patentable under traditional laws. To use the popular metaphor of Open Source allowing you to "open the hood of the car" that would be "welded shut" with closed source, you can now see the engine, but that doesn't mean you have the right to build and sell an exact copy yourself. You *do*, however, have the right to look at the engine and improve its design. In the case of the example given in the paper, if you do not have the right to use patented "Save As..." methods, well, go ahead and invent a *better* way to initiate a write to disk. Thus, it seems to me that software patents could encourage innovation, rather than inhibit it.
Having said this, I do agree that the problem of *correctly* enforcing software patents is non-trivial, and will require significant effort to address. Since it all comes down to "prior art", the PTO must improve its processes so that authorities can recognize such instances efficiently.
Well, if they were starving, maybe it would be difficult to be ethical about it. But all programmers I know make a very comfortable living (or have the option to). Most programmers do so even without obtaining patents.
Anywhere we can remove pressure to be unethical, I'm all for it. But whether we do or not, the greater blame lies with whoever's unethical and abuses the system, not with those who unintentially design a flawed system (designing a bulletproof system is tough).
He can, but he has no legal protection while the patent is pending; this means that others can make use of the invention as long as the patent has not actually been granted.
But it seems that others would be fools to do so (or be taking a big risk), because when the patent is granted, all their work becomes dependent on someone else's patent, someone who they've antagonized. That's what it seems like, but I admit I've never been involved in such a situation.
Let's look forward into the future in 10 years time. With fast (and hopefully cheap) bandwidth, people will be offering software services over the net. Why bother patenting when any trade secrets can be embodied in the backend machine and effectively hidden from public view. If competitors can't duplicate it then by definition it must be "non-obvious" and therefore you can keep on charging a premium for that service.
The fundamental problem is that software is nearly pure information and thus spreads like a wave. Attempting to control it like a particle source is inherently doomed to failure as the rest of the world will just innovate around it. It doesn't help when convergence forces technology closer together and idiots attempt to patent obvious variations but using a slightly different mechanism. We really need higher quality barriers to recognise the really innovative ideas. Peer review and not patent offices are the only way to go and OpenSource will hopefully be better in the long term at really identifying talent.
LL
1) If I have an idea I want to protect for the public domain (i.e. to keep anyone else from patenting it), do I have to actually patent it myself, or can I just publish it somewhere, thus qualifying as "prior art" against future patent attempts?
2) To be a little more aggressive, we could establish a foundation that owns many software patents, with the provisions that
Does anyone know enough patent law to comment on either of these?
That means the ONLY solution is to not allow software patents altogether.
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