Actually I generally choose the software I choose because of details of its expressiveness. E.g., I choose Gnumeric as my spreadsheet *because* it doesn't automatically capitalize words that I don't want capitalized.
OK, but the value here is not in how it aesthetically styles the document, but in facilitating you with text entry. That's not "artistic" - it's functional and utilitarian: it applies a more accurate predictive capitalization model than competing packages, which saves you some keystrokes. The document produced by each package probably looks identical - it just took you a few fewer strokes to input it.
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you can damn well bet that I choose my computer language because of it's expressiveness.
Hey, so do I. C# is really nice; Perl makes me shudder and break into a cold sweat.;)
But the programming language is not the same as the software. The source code is indeed a "writing" deserving of copyright. But when you run it through a compiler, what you get is an incomprehensible binary - it's machine code that happens to execute the instructions that you specified in the most accurate and efficient manner.
Any "art" that you may have imbued in the source code - the selection of names for symbols; the visual arrangement of the code (tabbing, etc.); comments and documentation - is actually *scrubbed out* during the compiling process. Instructions are rearranged and sometimes ignored; named symbols are reduced to logical memory references; etc. All that remains is the functionality that your source code commanded.
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Games? Please be serious.
I will absolutely side with you on that one - games have many artistic components. I was thinking more of applications, which you generally choose based on their functional capabilities.
I've read submissions from Adobe that they don't support patents... This was a few years ago, so they may possibly have since changed their minds.
Yep, mind-changing. They opposed software patents back in 1994 or so. However, their current CEO, John Warnock, supports software patents (and has actually lobbied Congress in favor thereof.)
Besides, this is from the About screen of Photoshop CS3:
Absence of evidence is not evidence of absence. You'll have to do better than that.
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I'm sure RIM wasn't happy having an injunction against them.
I'm sure they'd have preferred to have used NTP's patent for free. But they settled that case and continued operation just fine, neither "folding" nor "scaling back." Last I checked, the BlackBerry was a thriving product.
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Video compression. Unless you're one of the big players, you're effectively not allowed to participate.
Um, XVID? Its developer doesn't seem to be a "big player," and it seems to do just fine. (And it's a fine codec, too.)
I'm not sure what patent-based restriction you're seeing. I see plenty of interoperation of videos and players - you don't have lock-in of a particular codec to a particular player and/or video format. Codecs are readily swappable among renderers, etc.
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Right now software patents can only be used to attack American companies. I'm sure they'd love to level the playing field.
Errr... what?
First - U.S. software patents can be acquired by any company organized in any country, and can used to attack any company based on infringing activities occurring in the U.S.
Second - any patent law decision in Europe would also affect U.S. companies exactly the same as foreign companies based on the activities in EU nations.
So the playing field is as level as it can be: every country grants and enforces patents in a completely nationality-agnostic manner. What sort of unevenness are you implying?
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If a Chinese company opens an American office and patents a software concept, they can pursue American companies that violate it.
Yes, exactly as if an American company opened an American office and pursued Chinese companies that violate it... based on activities occurring in the U.S.
I completely don't understand what you're getting at about "U.S. companies" and "non-U.S. companies." It doesn't make any sense, and I can only conclude that you really don't understand the regional nature of patents.
I'll write it again - the nationalities of the applicant/patentee and accused infringer are irrelevant to enforcement issues. All that matters is where the accused activity occurs.
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You're bragging about the fact that we're unilaterally increasing risk to our companies at an increasing rate?
:sigh: Yep, you don't get it. The "risk" is to ALL companies of ANY nationality... WHEN THEY DO BUSINESS IN THE U.S. There is no "our companies" vs. "other countries' companies"... the application of the laws is exactly the same.
But anyway - I'm not "bragging" about anything - that would be nonsensical, since I have not helped to shape patent law or policy. I merely present facts from reliable sources that refute your arguments.
Probably the simplest reasonable answer is to just say that software cannot be patented. Everything else leads into a tangled jungle.
If you're going to choose software as being exclusively copyrightable or exclusively patentable... then ask yourself this: How often do you use a particular piece of software because it's "expressive" of an "aesthetic" concept, and how often do you use it because it can achieve a functional result to a particular problem?
After you've answered that question, ask yourself which is more appropriate: protecting software under a body of law designed to protect artistic works (novels, plays, songs) or useful inventions.
Err... without patent licensing, these cooperative consortiums couldn't exist. The consortium could say, "if you want to use our stuff, you've gotta follow these rules...", but there wouldn't be any force behind it. Non-consortium members could take the ideas and run with them.
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...here on/. a bunch of discussions have taken place on how Microsoft has tried to pervert ISO standards bodies...
Yeah, I guess the old days were better - when there was no consortium, when file and data formats were not at all intercompatible and mostly untranslatable, and when everyone just used Microsoft's file and data formats because "everyone else uses it."
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Meanwhile open standards work fine such as for electricity, electricity produced by wind farms in Scandinavia is compatible with the electricity produced via wind farms in Spain or the electricity produced in France's nuclear reactors.
:lol: Um....:snicker: really? You want to talk about the intercompatibility of electricity?:lol:
By the same token - software is freely interchangeable, too, because it's all made of 1s and 0s!! The 1s and 0s produced in Belgium are EXACTLY the same as the 1s and 0s produced in the U.S., or Australia, or on the moon!
Seriously, even electricity has had its share of battles and compatibility problems:
Riiiiight. Any evidence of this? Besides, y'know, a million posts on Slashdot asserting the same thing (also without evidence?)
Show me a company that hasn't been able to release a key piece of software because a competitor has a patent on it.
Show me a company that has admitted to staying out of a particular sector of software because of competing patents.
Show me a software company that has folded, or even scaled back operations, because of an adverse patent infringement judgment (AND where the patent was invalid due to novelty/non-obviousness, etc.)
Show me any area of software research that has been crippled by any software patent.
Hell - show me a Slashdotter who has not written a particular piece of software primarily because of a patent concern.
I'll bet that, aside from a few minor and tangential examples, you can't. Know why? Because that's not how patents are used - particularly in software. Licenses, cross-licenses, consortium arrangements, claim-centric design-arounds, and even old-fashioned "let's invent another way to do it"-ness abound. So do compulsory licenses (licenses granted to patents by a court against the will of a patentee) and business realities that discourage suing a small-fry competitor over a particular product.
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Do you think Microsoft really wants Joe Troll in Texas coming after them for 20 billion dollars because he patented spreadsheets? No! They see them as an evil that they have to put up with...
American companies, or at least the intelligent ones, hate software patents because they're only useful against American companies. They don't do jack against the 95% of the world's population that doesn't live here...
Ridiculously incorrect. Enforcement of a U.S. patent involves a patented item or activity existing in the U.S. The nationality of the company is completely irrelevant.
In fact, non-U.S. companies have obtained patents in greater numbers over the last 15 years - both in terms of raw numbers (50,000 in 1994; 90,000 in 2007) and as compared with U.S. companies (from 43% in 1994 to 49% in 2007.)
With a software patent, all I apparently have to do is take the well-known way of doing something and add one of the phrases "with a computer" or "on the internet" and I get a patent.
You couldn't be further from the truth. The USPTO is being extremely obstructive of all software patent applications - pendency times are through the roof... they're basically stalling on examination indefinitely in software (among other areas.)
Of course, this delay hurts every applicant, regardless of the merit of the invention.
Arguably, this is in dereliction of their duty as the administrative body of the federal government for examining applications. The Government Accountability Office (GAO) has written several scorching reports on the poor management of the PTO. I wouldn't be surprised to see class-action lawsuits and congressional investigations against the PTO (once election fever dies down, and we can replace Bushie cronies with more competent folks.)
nd then there's the issue of Software being seen as a product, but not being sold, and it being -licensed- instead...
That's copyright law, not patent law.
Short answer: Copyright law does not grant the author full control of the work. There are only five rights granted by copyright: reproducing, distributing, derivatizing, public display, and public performance. A holder of the copyrighted work can do anything with it that doesn't fall into these bins. And even these rights are limited by certain principles (fair use, first sale doctrine, etc.)
Patents by their vary nature are anticompetitive (I know you said "anticooperative", which patents can be also), they grant the patent holder a monopoly.
The sole right granted by a patent is anticompetitive, yes. But that doesn't mean that the only use of a patent is to squelch competition - it can be used cooperatively in licensing, standards-body formation, etc.
They are offering the majority of their software patents for free to people who offer to join the fight against patents...
"...who offer to join the fight against patents?" Riiiiiight. I think you're jamming words into IBM's mouth that it didn't put there.
IBM's donation is a standards-body/consortium licensing agreement. It works like this:
"We've made and patented many contributions to this niche. We will put ours into a pool with other contributors so that we can all use them in a cooperative manner, so long as certain conditions of development are satisfied. We'll also allow others to use the technologies and participate in the consortium if they abide to the same conditions..."
This is a traditional licensing arrangement. It helps ensure that the participants play according to some common rules - e.g., compulsory cross-licensing, such as "no one will warp the standard in a proprietary way, or refuse to cross-license their products on a reasonable basis..." etc.
These agreements only work because of the pooled patents. They ensure that participant who doesn't comply will be in breach of licenses, and will be on the hook for patent infringement damages (likely of a whole body of patents donated by many players!) If those patents did not exist, there would be no significant financial threat... and hence, no consortium. In fact, this is one of the strongest arguments in favor of patents for software (and any other technology.) It wards off "embrace, extend, extinguish" tactics and other types of anticooperative behavior.
In general, IBM is a huge fan of patent licenses - it's one of the top patent licensors in *any* field. Only a few are donated to consortiums like this - the quid pro quo of most of its licenses is a cash payment, or a cross-license of another patent, etc. Those are traditional (and widely practiced and accepted) forms of software licenses... and if anything, they support the concept of software patents - because they can be, and often are, used in a cooperative manner.
BTW - it's hardly "a majority" of its patents... it has donated 500 patents to OSS, but it typically receives over 3,000 patents annually.
IBM is on your lists for supporting software patents. They do not believe in them.
Wrong. IBM is an ardent supporter of patents, and has consistently argued in favor of them. And an increasing share of its business is based on software patents.
Rather, IBM's position is that it is against bad patents: those that are not adequately examined, and that issue despite invalidating prior art. IBM supports software patents just as ardently as electrical patents... so long as the patented invention is novel, non-obvious, adequately described, etc.
(And, really, who could oppose that position? Even though better examination lead to a higher rejection rate, they also lead to greater certainty in the validity of issued patents. In fact, the only opponent of this position is the USPTO itself, which throttles the amount of time and resources that an examiner can throw at an application in the interest of "productivity." I'll let you draw your own conclusions about that.)
...and most of the patents they are now putting through are hardware patents.
Also wrong (same article as above.) IBM's software patenting efforts have grown over the last decade.
It's almost like you didn't RTFA at all. The decisions in question, In re Nuijten, In re Comiskey and In re Bilski, are all CAFC decisions not PTO decisions...
You didn't RTFA, which is about (1) the position taken by the PTO in a case before the CAFC, and (2) the trend of the PTO's decisions in prior cases before the CAFC.
As for the CAFC's opinions: In re Nuijten was a specific question about a particular claim style in the software arts (the "electromagnetic signal" claim); In re Comiskey was not even a software case - it was purely a business-method case involving an arbitration of a legal dispute by a human arbitrator; and In re Bilski has not yet been decided.
I doubt the rehearing of Bilski will come out the way you seem to believe it will.
Wait and see. In the meantime, don't forget that this is the same court that decided State Street Bank, which - well, you know what that's about, right?
Additionally, the major players in the IP market, are increasingly getting patents for defensive purposes and pushing for patent reform (See the Patent Reform Act of 2007).
Patents are used for all sorts of purposes in industry. Litigation is only one scenario, where company A believes it has a valid patent covering company B's product, but company B refuses to settle.
Here are some other uses of patents (besides litigation and defense) that are a daily part of technology businesses:
Licensing and cross-licensing.
Establishing market power.
Allowing researchers to publish without surrendering the rights to published inventions.
Controlling an industry standard, and forming an industry consortium.
Acquired business assets that promotes stock prices, secures investment, collateral for loans, etc.
Keep in mind that these activities are all pretty invisible - they involve mostly private communication among firms. It's impossible to gauge this from the outside.
Of course, companies seem to believe in the value of patents - they keep applying for them, in greater numbers every year....the trend is clearly away from stronger patent rights, especially in the field of software patents.
Generally we are in a phase of contraction of patent rights, yes. The patent system is cyclic - inventors' rights tend to fluctuate with the political climate. But the pendulum always swings back.
Now it is entirely possible that the system will not change and inane and overly broad software patents will continue to come flowing out of the PTO.. However, the trend is certainly in the opposite direction.
The system has been changing through a series of small tweaks. Most of those cut against the rights of inventors, but by and large, patenting is the same game it was a decade ago (State Street Bank came about in 2008.)
Part of the reason why the system changes only in small increments is that the CAFC and Supreme Court tend to issue very narrow, limited decisions on patent law issues. They don't make huge, sweeping changes - they appreciate that the system is very complex, and that rapid change could be disastrous.
Your not patenting the patent; you are patenting the physical machine.
That is flatly incorrect.
A machine patent claims a particular configuration and interrelation of components: "an A connected to a B and applying pressure to a C..." etc.
And the components don't even need to be particularly stated: a general reference to a "fastener" or a "fastening means" can cover anything that holds part A to part B (a bolt, a nail, a clip, tape, a piece of rope, glue...)
Even in the machine arts, the focus of the patent is the operative principle: the concept of using force, pressure, torque, etc. in a particular way to achieve a particular result. Any machine operating according to that concept is covered by the patent. Of course, that principle may be described with an example, such as a particular combination of parts. And the patentee may find it convenient to describe his own embodiment - the particular components that he chose. But the patent claims, which define the scope of the patent, can be very broad and generic - even in machine patents.
This point is so poorly misunderstood here at Slashdot that I'll write it again: For all types of patents, the defining limitation is the operative concept. So it has ever been.
This calls for a Kermit full-waving "YAAAaaaaaaaaaaaaaaaay!"
Err... not so fast.
The PTO is an administrative body, not a legal body. It has no authority to state, "these types of inventions are patentable, and these aren't." It cannot impose new substantive requirements on inventions, including "physicality."
The PTO has taken this position a dozen times in the past - and it has been repeatedly rejected by the federal courts. The federal judges must be tired of having to explain to the PTO that "physicality" is not, and never was, a requirement of patentability.
So what we have here, once again, is the PTO exceeding its authority. The federal court has already hammered the PTO once this year for this (relating to its imposed requirements on continuation rules.) Expect this to occur again when the federal court decides In re Bilski.
Look, guys - nothing's gonna change. IT is one of the only consistently thriving segments of the U.S. economy, and the drivers of that market - Intel, IBM, Microsoft, Apple, Google, Yahoo, Adobe, eBay - all utilize and support software patents. If anything, they're pinning an increasing emphasis and reliance on software patenting. And they all have great lobbyists, so expect Congress to step in with new patent legislation if it looks like software patents are in jeopardy. (They've done it before, folks. Consider 35 USC 103(b) for a specific instance where Congress changed the law to support biotech patenting.)
Well, if it's too functional, then it's vulnerable to some attacks, such as the merger doctrine, or scenes à faire.
Have you ever seen a copyrighted piece of software challenged as not copyrightable because it's "too functional," or merely scenes à faire? I've never read of any such instance.
And that's exactly my point: somewhere along the line, the "artistic" requirement of copyright got dumped. In the field of software, copyright doesn't only cover "artistic works"; it covers "works." Right? Isn't that strange?
Small bits of code -- getting input, modifying strings, etc. -- may not be creative themselves, but the overall piece of software assembled from all of these things very well can be.
I think you're interpreting "creative" as conflating "expressive" and "artistic."
The manipulation of strings, the fetching of input - how is this pursuit different from choosing logic gates and interconnecting them to produce a novel circuit? If they're the same, shouldn't electrical engineers be able to get genuine copyright protection for their circuits? Why do they need sui generis protection in the form of mask works?
Binaries are just the same as source code, from a copyright perspective, save that the binaries are the functional bits of the source reorganized in a manner that is convenient to the computer.
I know and agree that that's how the law of copyright currently works. But I believe that it's asinine - an absurd departure from the primary principle of copyright: that it protects "expressive" works.
While generating a binary, a compiler effectively strips out the "aesthetic" aspects of the source code. Comments are dumped; human-readable symbols (e.g., class and method names) are obfuscated; instructions are rearranged or otherwise interpreted by optimizing routines. Internally, the binary doesn't even internally resemble your source code. It just happens to produce the functional result specified in the source code when invoked. All that's left is the functional configuration of machine-readable opcodes.
Let's say you write and compile a binary that performs the Pythagorean theorem. You invoke it with:
ComputePythagorean 3 4
...and it spits back:
5
Fine. Now in reality, you own a copyright on the source code that you wrote to compute the Pythagorean theorem, because it's a "writing." And you own a copyright on the binary that executes it. But what part of the binary or its executing is "aesthetic?" Why is copyright involved here at all?
(Again, I agree that the binary can produce artistic expressions that are inarguably protectible: graphics, sounds, webpage layout, etc. Rather, I'm addressing the other kinds of software that have no aesthetic expression when executed, but are somehow worthy of copyright protection anyway.)
If it started making a loss, I'm sure somebody would be out of the door.
No, they would just adjust the fees to cover the increased costs. That's what "it sets its fees to cover its operating costs" means.
The more patents there are, the more litigation there'll be. The more litigation, the more work for lawyers.
You're missing the fact that some lawyers file and argue for issuance of the patents, and completely different lawyers fight over them in court. That's the difference between patent attorneys (who spend their days writing and arguing with the USPTO) and patent litigators (who spend their days preparing and trying cases in courtrooms.) They're usually with completely different firms, too.
So you're suggesting that a patent attorney might intentionally write an ambiguous patent application that has to be litigated - wasting his client's money, his relationship with his client, and even his law license - just so that a litigator with another firm might get to try the case.
Doesn't that seem improbable and silly to you?
There's plenty of others.
In fact, there aren't. If you build your practice with expertise in semiconductor fabrication techniques, how many companies in the entire world need your services? A few dozen, maybe.
Patent prosecution firms are usually built around repeat business from a few large clients, with a smattering of smaller companies and sole inventors just to keep things interesting. Steady work from a single big client can provide full-time work for a dozen attorneys for years. Do you really think that's worth risking for a little extra business?
Patents allow idea protection but you need to have a single implementation developed well enough to disclose its workings to the public.
That is completely incorrect.
The relevant standard here is called PHOSITA: the invention must be sufficiently described to permit a "person having ordinary skill in the art" to make and use the invention without undue experimentation.
This requirement pertains to the clarity and completeness of the specification. It is not decided with reference to particular implementations, embodiments, or products. Patents are (correctly) granted every day for inventions that the inventor hasn't even begun to implement.
In short - as long as the examiner can make sense of the invention, and doesn't have any specific objections ("I don't think this part will actually work..."), this requirement is satisfied.
Don't they both (directly or indirectly) make more money the more ptents are granted?
No.
The USPTO is not profit-driven - it sets its fees to cover its operating costs. It doesn't make a lot of profit. And this is not a cancerous bureaucracy intent on growth - it's actually trying to reduce application filings, and it has embraced its need for more examiners with great reluctance.
Arguably, the goal of a patent attorney is not to get the most issued patents, either. The goal is to get many good patents issued. Filing bad patents that don't hold up in court tends to make clients stop using you.
So in sum, copyrights are used to prevent people from copying particular bits of source or binaries, but patents are used to prevent people from making identically functioning software, regardless of copying.
Your post is a good, concise, and accurate summary of the law.
However, to take this a step further - the problem is that there's a whole lot of divergence between "copyright covers expression; patent covers invention" and "copyright covers an embodiment [e.g., a written piece of software]; patent covers the operative concept embodied in it."
Only in the realm of software is this distinction interpreted this way. Embodiments of machines, chemicals, and industrial processes aren't generally copyrightable. Artistic aspects of them may be copyrightable - the sexy shape of the iPod; the distinctive hue of a particular dye - but it's not a general principle, right?
The madness all started when the software industry needed a way to squelch piracy, and seized on the field of copyright to patch the hole. To this end, the idea of "artistic expression" has been warped to a nonsensical extreme, covering any implementation of software - even if purely functional and utterly non-aesethetic (even if it's an invisible background process!)
And while any source code should be just as copyrightable as other types of writing, it doesn't follow that compiled binaries executing the instructions of the source code somehow inherit the copyright coverage of the source code. Is the "artistic expression" of the source code even apparent from the binary? Isn't it invisible, running in the background? If you learn a principle in a book and then use that principle in your own head, does the author own a copyright on your "derivative" thoughts?
The law of software copyright needs to be fixed, folks. It's pointless to tap the "idea/expression" legal fiction if the "expression" half is paradoxical and absurd.
I think you don't understand the word 'proxy' as it's used in that sentence.
"Proxy" can mean an agent - one who speaks on behalf of another. An executor of a will is a proxy for the deceased.
Based on your acerbic comment, I presume that you're reading "proxy" as "substitute." That's fine, and I could address that sentiment. But you're mis-addressing your vitriol, because the original post was ambiguous. (In fact, it's not even clear which way the original poster intended that comment.)
If they're willing to work without that incentive, it is wasteful to grant it to them anyway.
Sure it does, because of the disclosure factor. If inventions weren't patentable, tons of effort would be wasted in obscuring inventions to rely on trade secret law. RSA would have been created, but it might not have been published.
Incentivizing public disclosure is fully half of the reason for the patent system. The value there can't be underestimated. The software industry, in particular, engages in way too much cloak-and-dagger nonsense for DRM and bad security efforts.
In fact, this is probably true for the vast majority of inventors in the computer field.
Really? I'd like to assert that in software more than any other field, inventions are usually kept secret through closed-source distribution of compiled binaries. It's easier to reverse-engineer the mechanism of a machine than to decompile and analyze software. Even in pharmaceuticals, the invention is plainly set forth in scientific articles and a mountain of FDA filings.
Internationally, the number of patents issued in a country is often cited as a proxy for Innovation.
That would be a pretty silly metric, since in any country - including the U.S. - many (most?) patent applicants are foreign companies.
The rate of patenting in a country is a good measure of the strength of a country's economy, since it relates to the interest of companies in selling their products there. But the USPTO has no control over the strength of the economy - no one will praise a patent office for somehow improving the economy with high rates of application or issuance.
*sigh* Any post that begins by conflating the interests of the USPTO and patent lawyers - two completely different groups with orthogonal goals - is difficult to take seriously. But looking past that...
The patent system is run by the USPTO + lawyers primarily for their benefit.
No one at the USPTO is getting rich off of the patent system. It's an administrative agency that sits there and fulfills a task. Government salaries suck with comparison to the public sector.
Um, yes, patent lawyers practice law for the benefit of their firms and their clients. Do you suggest something different? However, patent lawyers have very little control over "the system" - they simply use the system that's put in place by Congress and the courts.
USPTO generates a healthy profit for Uncle Sam too.
This has never been true in the history of patents! Even at the height of fee diversion (i.e., patent office budget surpluses siphoned off by the federal government), the amount of money diverted was a teeny, tiny drop in the bucket of the federal treasury. No, the USPTO basically covers its costs, and that's about it.
Therefore the system favors cranking out many low quality paptents.
Then why is the USPTO almost singularly pursuing a reduction in patenting? Most of the efforts of USPTO management are focused on reducing rates of issuance.
But the real money comes in when a patent is contested. This happens mostly when the patents are low quaility. Therefore patent lawyers score more out of low quality patents than high quality patents.
You're missing a key distinction here. Patent *attorneys* work with the USPTO to get patents to issue. Patent *litigators* fight over patents in court. They're never the same people, and rarely the same firm.
The LAST thing any patent attorney wants for a client is a low-quality patent. If the patent is litigated (again, by another firm) and found to be clearly invalid, that client is never going to hire the patent attorney again.
The essence of my complaint with your comment is the tone that posits the poor, poor PTO against the greedy and corrupt politicians and applicants.
Yep, that's a common misconception that warps many arguments about the USPTO (here on/., in Congress, and everywhere in between.)
The USPTO is not supposed to be the opponent of the applicant that issues patents only when it is defeated. It is not supposed to be a stopgap, or a dam regulating the rate of innovation.
Rather, the USPTO is supposed to be an impartial body that researches the technology, compares the invention to the prior art, and reaches the right conclusion about whether the application should be issued. Correctly issuing a patent should be just as joyous an occasion for the USPTO as correctly denying a patent.
Unfortunately, many forget that this is its role. These days, that includes USPTO management, which loudly and often proclaims its goal of raising its rates of rejection. Its efforts these days are mostly about giving examiners more power to reject applications, and throwing more arbitrary obstacles in the path of applicants.
Criminal prosecutors are tasked with proving the occurrence of crimes - NOT with increasing the number of people sitting in jail. Those are two very different goals, right? Same with the USPTO... it's lost its focus.
Slashdot Mirror
Wow. I'll take that as high praise. ;)
- David Stein
Actually I generally choose the software I choose because of details of its expressiveness. E.g., I choose Gnumeric as my spreadsheet *because* it doesn't automatically capitalize words that I don't want capitalized.
OK, but the value here is not in how it aesthetically styles the document, but in facilitating you with text entry. That's not "artistic" - it's functional and utilitarian: it applies a more accurate predictive capitalization model than competing packages, which saves you some keystrokes. The document produced by each package probably looks identical - it just took you a few fewer strokes to input it.
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you can damn well bet that I choose my computer language because of it's expressiveness.
Hey, so do I. C# is really nice; Perl makes me shudder and break into a cold sweat. ;)
But the programming language is not the same as the software. The source code is indeed a "writing" deserving of copyright. But when you run it through a compiler, what you get is an incomprehensible binary - it's machine code that happens to execute the instructions that you specified in the most accurate and efficient manner.
Any "art" that you may have imbued in the source code - the selection of names for symbols; the visual arrangement of the code (tabbing, etc.); comments and documentation - is actually *scrubbed out* during the compiling process. Instructions are rearranged and sometimes ignored; named symbols are reduced to logical memory references; etc. All that remains is the functionality that your source code commanded.
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Games? Please be serious.
I will absolutely side with you on that one - games have many artistic components. I was thinking more of applications, which you generally choose based on their functional capabilities.
- David Stein
I've read submissions from Adobe that they don't support patents... This was a few years ago, so they may possibly have since changed their minds.
Yep, mind-changing. They opposed software patents back in 1994 or so. However, their current CEO, John Warnock, supports software patents (and has actually lobbied Congress in favor thereof.)
Besides, this is from the About screen of Photoshop CS3:
"Protected by U.S. Patents 4,667,247; 4,837,613; 5,050,103; 5,146,346; 5,185,818; 5,200,740; 5,233,336; 5,237,313; 5,255,357; 5,546,528; 5,625,711; 5,634,064; 5,729,637; 5,737,599; 5,754,873; 5,781,785; 5,808,623; 5,819,278; 5,819,301; 5,832,530; 5,832,531; 5,835,634; 5,860,074; 5,870,091; 5,905,506; 5,929,866; 5,930,813; 5,943,063; 5,974,198; 5,995,086; 5,999,649; 6,023,264; 6,025,850; 6,028,583; 6,049,339; 6,072,502; 6,073,148; 6,084,684; 6,100,904; 6,185,342; 6,205,549; 6,208,351; 6,269,196; 6,275,587; 6,289,364; 6,298,157; 6,313,824; 6,324,555; 6,337,925; 6,357,038; 6,385,350; 6,396,959; 6,408,092; 6,411,730; 6,411,742; 6,415,278; 6,421,460; 6,434,269; 6,456,297; 6,466,210; 6,507,848; 6,515,675; 6,563,502; 6,563,509; 6,587,592; 6,604,105; 6,606,166; 6,639,593; 6,701,023; 6,711,557; 6,720,997; 6,721,446; 6,728,398; 6,748,111; 6,754,382; 6,771,816; 6,775,821; 6,785,866; 6,791,573; 6,803,923; 6,825,852; 6,842,786; 6,844,882; 6,857,105; 6,862,102; 6,865,301; 6,894,704; 6,934,909; 6,970,169; 6,983,074; 7,002,597; 7,006,107; 7,006,707; 7,042,467; 7,071,948; 7,088,375; patents pending"
That seems like a healthy amount of support, don't you agree? ;)
- David Stein
Absence of evidence is not evidence of absence. You'll have to do better than that.
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I'm sure RIM wasn't happy having an injunction against them.
I'm sure they'd have preferred to have used NTP's patent for free. But they settled that case and continued operation just fine, neither "folding" nor "scaling back." Last I checked, the BlackBerry was a thriving product.
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Video compression. Unless you're one of the big players, you're effectively not allowed to participate.
Um, XVID? Its developer doesn't seem to be a "big player," and it seems to do just fine. (And it's a fine codec, too.)
I'm not sure what patent-based restriction you're seeing. I see plenty of interoperation of videos and players - you don't have lock-in of a particular codec to a particular player and/or video format. Codecs are readily swappable among renderers, etc.
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Right now software patents can only be used to attack American companies. I'm sure they'd love to level the playing field.
Errr... what?
First - U.S. software patents can be acquired by any company organized in any country, and can used to attack any company based on infringing activities occurring in the U.S.
Second - any patent law decision in Europe would also affect U.S. companies exactly the same as foreign companies based on the activities in EU nations.
So the playing field is as level as it can be: every country grants and enforces patents in a completely nationality-agnostic manner. What sort of unevenness are you implying?
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If a Chinese company opens an American office and patents a software concept, they can pursue American companies that violate it.
Yes, exactly as if an American company opened an American office and pursued Chinese companies that violate it... based on activities occurring in the U.S.
I completely don't understand what you're getting at about "U.S. companies" and "non-U.S. companies." It doesn't make any sense, and I can only conclude that you really don't understand the regional nature of patents.
I'll write it again - the nationalities of the applicant/patentee and accused infringer are irrelevant to enforcement issues. All that matters is where the accused activity occurs.
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You're bragging about the fact that we're unilaterally increasing risk to our companies at an increasing rate?
But anyway - I'm not "bragging" about anything - that would be nonsensical, since I have not helped to shape patent law or policy. I merely present facts from reliable sources that refute your arguments.
- David Stein
Probably the simplest reasonable answer is to just say that software cannot be patented. Everything else leads into a tangled jungle.
If you're going to choose software as being exclusively copyrightable or exclusively patentable... then ask yourself this: How often do you use a particular piece of software because it's "expressive" of an "aesthetic" concept, and how often do you use it because it can achieve a functional result to a particular problem?
After you've answered that question, ask yourself which is more appropriate: protecting software under a body of law designed to protect artistic works (novels, plays, songs) or useful inventions.
- David Stein
Without patents licensing wouldn't be needed.
Err... without patent licensing, these cooperative consortiums couldn't exist. The consortium could say, "if you want to use our stuff, you've gotta follow these rules...", but there wouldn't be any force behind it. Non-consortium members could take the ideas and run with them.
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Yeah, I guess the old days were better - when there was no consortium, when file and data formats were not at all intercompatible and mostly untranslatable, and when everyone just used Microsoft's file and data formats because "everyone else uses it."
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Meanwhile open standards work fine such as for electricity, electricity produced by wind farms in Scandinavia is compatible with the electricity produced via wind farms in Spain or the electricity produced in France's nuclear reactors.
By the same token - software is freely interchangeable, too, because it's all made of 1s and 0s!! The 1s and 0s produced in Belgium are EXACTLY the same as the 1s and 0s produced in the U.S., or Australia, or on the moon!
Seriously, even electricity has had its share of battles and compatibility problems:
Edison vs. Tesla
International electricity differences today
...etc.
- David Stein
Riiiiight. Any evidence of this? Besides, y'know, a million posts on Slashdot asserting the same thing (also without evidence?)
Show me a company that hasn't been able to release a key piece of software because a competitor has a patent on it.
Show me a company that has admitted to staying out of a particular sector of software because of competing patents.
Show me a software company that has folded, or even scaled back operations, because of an adverse patent infringement judgment (AND where the patent was invalid due to novelty/non-obviousness, etc.)
Show me any area of software research that has been crippled by any software patent.
Hell - show me a Slashdotter who has not written a particular piece of software primarily because of a patent concern.
I'll bet that, aside from a few minor and tangential examples, you can't. Know why? Because that's not how patents are used - particularly in software. Licenses, cross-licenses, consortium arrangements, claim-centric design-arounds, and even old-fashioned "let's invent another way to do it"-ness abound. So do compulsory licenses (licenses granted to patents by a court against the will of a patentee) and business realities that discourage suing a small-fry competitor over a particular product.
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Do you think Microsoft really wants Joe Troll in Texas coming after them for 20 billion dollars because he patented spreadsheets? No! They see them as an evil that they have to put up with...
Wrong again. Microsoft has actually argued for expanding software patent rights in Europe. Why would it do that if it regarded software patents as a loathsome burden?
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American companies, or at least the intelligent ones, hate software patents because they're only useful against American companies. They don't do jack against the 95% of the world's population that doesn't live here...
Ridiculously incorrect. Enforcement of a U.S. patent involves a patented item or activity existing in the U.S. The nationality of the company is completely irrelevant.
In fact, non-U.S. companies have obtained patents in greater numbers over the last 15 years - both in terms of raw numbers (50,000 in 1994; 90,000 in 2007) and as compared with U.S. companies (from 43% in 1994 to 49% in 2007.)
- David Stein
With a software patent, all I apparently have to do is take the well-known way of doing something and add one of the phrases "with a computer" or "on the internet" and I get a patent.
You couldn't be further from the truth. The USPTO is being extremely obstructive of all software patent applications - pendency times are through the roof... they're basically stalling on examination indefinitely in software (among other areas.)
Of course, this delay hurts every applicant, regardless of the merit of the invention.
Arguably, this is in dereliction of their duty as the administrative body of the federal government for examining applications. The Government Accountability Office (GAO) has written several scorching reports on the poor management of the PTO. I wouldn't be surprised to see class-action lawsuits and congressional investigations against the PTO (once election fever dies down, and we can replace Bushie cronies with more competent folks.)
- David Stein
nd then there's the issue of Software being seen as a product, but not being sold, and it being -licensed- instead...
That's copyright law, not patent law.
Short answer: Copyright law does not grant the author full control of the work. There are only five rights granted by copyright: reproducing, distributing, derivatizing, public display, and public performance. A holder of the copyrighted work can do anything with it that doesn't fall into these bins. And even these rights are limited by certain principles (fair use, first sale doctrine, etc.)
- David Stein
Patents by their vary nature are anticompetitive (I know you said "anticooperative", which patents can be also), they grant the patent holder a monopoly.
The sole right granted by a patent is anticompetitive, yes. But that doesn't mean that the only use of a patent is to squelch competition - it can be used cooperatively in licensing, standards-body formation, etc.
- David Stein
They are offering the majority of their software patents for free to people who offer to join the fight against patents...
"...who offer to join the fight against patents?" Riiiiiight. I think you're jamming words into IBM's mouth that it didn't put there.
IBM's donation is a standards-body/consortium licensing agreement. It works like this:
"We've made and patented many contributions to this niche. We will put ours into a pool with other contributors so that we can all use them in a cooperative manner, so long as certain conditions of development are satisfied. We'll also allow others to use the technologies and participate in the consortium if they abide to the same conditions..."
This is a traditional licensing arrangement. It helps ensure that the participants play according to some common rules - e.g., compulsory cross-licensing, such as "no one will warp the standard in a proprietary way, or refuse to cross-license their products on a reasonable basis..." etc.
These agreements only work because of the pooled patents. They ensure that participant who doesn't comply will be in breach of licenses, and will be on the hook for patent infringement damages (likely of a whole body of patents donated by many players!) If those patents did not exist, there would be no significant financial threat... and hence, no consortium. In fact, this is one of the strongest arguments in favor of patents for software (and any other technology.) It wards off "embrace, extend, extinguish" tactics and other types of anticooperative behavior.
In general, IBM is a huge fan of patent licenses - it's one of the top patent licensors in *any* field. Only a few are donated to consortiums like this - the quid pro quo of most of its licenses is a cash payment, or a cross-license of another patent, etc. Those are traditional (and widely practiced and accepted) forms of software licenses... and if anything, they support the concept of software patents - because they can be, and often are, used in a cooperative manner.
BTW - it's hardly "a majority" of its patents... it has donated 500 patents to OSS, but it typically receives over 3,000 patents annually.
- David Stein
IBM is on your lists for supporting software patents. They do not believe in them.
Wrong. IBM is an ardent supporter of patents, and has consistently argued in favor of them. And an increasing share of its business is based on software patents.
Rather, IBM's position is that it is against bad patents: those that are not adequately examined, and that issue despite invalidating prior art. IBM supports software patents just as ardently as electrical patents... so long as the patented invention is novel, non-obvious, adequately described, etc.
(And, really, who could oppose that position? Even though better examination lead to a higher rejection rate, they also lead to greater certainty in the validity of issued patents. In fact, the only opponent of this position is the USPTO itself, which throttles the amount of time and resources that an examiner can throw at an application in the interest of "productivity." I'll let you draw your own conclusions about that.)
Also wrong (same article as above.) IBM's software patenting efforts have grown over the last decade.
- David Stein
It's almost like you didn't RTFA at all. The decisions in question, In re Nuijten, In re Comiskey and In re Bilski, are all CAFC decisions not PTO decisions...
You didn't RTFA, which is about (1) the position taken by the PTO in a case before the CAFC, and (2) the trend of the PTO's decisions in prior cases before the CAFC.
As for the CAFC's opinions: In re Nuijten was a specific question about a particular claim style in the software arts (the "electromagnetic signal" claim); In re Comiskey was not even a software case - it was purely a business-method case involving an arbitration of a legal dispute by a human arbitrator; and In re Bilski has not yet been decided.
I doubt the rehearing of Bilski will come out the way you seem to believe it will.
Wait and see. In the meantime, don't forget that this is the same court that decided State Street Bank, which - well, you know what that's about, right?
Additionally, the major players in the IP market, are increasingly getting patents for defensive purposes and pushing for patent reform (See the Patent Reform Act of 2007).
Patents are used for all sorts of purposes in industry. Litigation is only one scenario, where company A believes it has a valid patent covering company B's product, but company B refuses to settle.
Here are some other uses of patents (besides litigation and defense) that are a daily part of technology businesses:
Keep in mind that these activities are all pretty invisible - they involve mostly private communication among firms. It's impossible to gauge this from the outside.
Of course, companies seem to believe in the value of patents - they keep applying for them, in greater numbers every year. ...the trend is clearly away from stronger patent rights, especially in the field of software patents.
Generally we are in a phase of contraction of patent rights, yes. The patent system is cyclic - inventors' rights tend to fluctuate with the political climate. But the pendulum always swings back.
Now it is entirely possible that the system will not change and inane and overly broad software patents will continue to come flowing out of the PTO.. However, the trend is certainly in the opposite direction.
The system has been changing through a series of small tweaks. Most of those cut against the rights of inventors, but by and large, patenting is the same game it was a decade ago (State Street Bank came about in 2008.)
Part of the reason why the system changes only in small increments is that the CAFC and Supreme Court tend to issue very narrow, limited decisions on patent law issues. They don't make huge, sweeping changes - they appreciate that the system is very complex, and that rapid change could be disastrous.
- David Stein
Your not patenting the patent; you are patenting the physical machine.
That is flatly incorrect.
A machine patent claims a particular configuration and interrelation of components: "an A connected to a B and applying pressure to a C..." etc.
And the components don't even need to be particularly stated: a general reference to a "fastener" or a "fastening means" can cover anything that holds part A to part B (a bolt, a nail, a clip, tape, a piece of rope, glue...)
Even in the machine arts, the focus of the patent is the operative principle: the concept of using force, pressure, torque, etc. in a particular way to achieve a particular result. Any machine operating according to that concept is covered by the patent. Of course, that principle may be described with an example, such as a particular combination of parts. And the patentee may find it convenient to describe his own embodiment - the particular components that he chose. But the patent claims, which define the scope of the patent, can be very broad and generic - even in machine patents.
This point is so poorly misunderstood here at Slashdot that I'll write it again: For all types of patents, the defining limitation is the operative concept. So it has ever been.
- David Stein
This calls for a Kermit full-waving "YAAAaaaaaaaaaaaaaaaay!"
Err... not so fast.
The PTO is an administrative body, not a legal body. It has no authority to state, "these types of inventions are patentable, and these aren't." It cannot impose new substantive requirements on inventions, including "physicality."
The PTO has taken this position a dozen times in the past - and it has been repeatedly rejected by the federal courts. The federal judges must be tired of having to explain to the PTO that "physicality" is not, and never was, a requirement of patentability.
So what we have here, once again, is the PTO exceeding its authority. The federal court has already hammered the PTO once this year for this (relating to its imposed requirements on continuation rules.) Expect this to occur again when the federal court decides In re Bilski.
Look, guys - nothing's gonna change. IT is one of the only consistently thriving segments of the U.S. economy, and the drivers of that market - Intel, IBM, Microsoft, Apple, Google, Yahoo, Adobe, eBay - all utilize and support software patents. If anything, they're pinning an increasing emphasis and reliance on software patenting. And they all have great lobbyists, so expect Congress to step in with new patent legislation if it looks like software patents are in jeopardy. (They've done it before, folks. Consider 35 USC 103(b) for a specific instance where Congress changed the law to support biotech patenting.)
- David Stein
Well, if it's too functional, then it's vulnerable to some attacks, such as the merger doctrine, or scenes à faire.
Have you ever seen a copyrighted piece of software challenged as not copyrightable because it's "too functional," or merely scenes à faire? I've never read of any such instance.
And that's exactly my point: somewhere along the line, the "artistic" requirement of copyright got dumped. In the field of software, copyright doesn't only cover "artistic works"; it covers "works." Right? Isn't that strange?
Small bits of code -- getting input, modifying strings, etc. -- may not be creative themselves, but the overall piece of software assembled from all of these things very well can be.
I think you're interpreting "creative" as conflating "expressive" and "artistic."
The manipulation of strings, the fetching of input - how is this pursuit different from choosing logic gates and interconnecting them to produce a novel circuit? If they're the same, shouldn't electrical engineers be able to get genuine copyright protection for their circuits? Why do they need sui generis protection in the form of mask works?
Binaries are just the same as source code, from a copyright perspective, save that the binaries are the functional bits of the source reorganized in a manner that is convenient to the computer.
I know and agree that that's how the law of copyright currently works. But I believe that it's asinine - an absurd departure from the primary principle of copyright: that it protects "expressive" works.
While generating a binary, a compiler effectively strips out the "aesthetic" aspects of the source code. Comments are dumped; human-readable symbols (e.g., class and method names) are obfuscated; instructions are rearranged or otherwise interpreted by optimizing routines. Internally, the binary doesn't even internally resemble your source code. It just happens to produce the functional result specified in the source code when invoked. All that's left is the functional configuration of machine-readable opcodes.
Let's say you write and compile a binary that performs the Pythagorean theorem. You invoke it with:
ComputePythagorean 3 4
5
Fine. Now in reality, you own a copyright on the source code that you wrote to compute the Pythagorean theorem, because it's a "writing." And you own a copyright on the binary that executes it. But what part of the binary or its executing is "aesthetic?" Why is copyright involved here at all?
(Again, I agree that the binary can produce artistic expressions that are inarguably protectible: graphics, sounds, webpage layout, etc. Rather, I'm addressing the other kinds of software that have no aesthetic expression when executed, but are somehow worthy of copyright protection anyway.)
- David Stein
If it started making a loss, I'm sure somebody would be out of the door.
No, they would just adjust the fees to cover the increased costs. That's what "it sets its fees to cover its operating costs" means.
The more patents there are, the more litigation there'll be. The more litigation, the more work for lawyers.
You're missing the fact that some lawyers file and argue for issuance of the patents, and completely different lawyers fight over them in court. That's the difference between patent attorneys (who spend their days writing and arguing with the USPTO) and patent litigators (who spend their days preparing and trying cases in courtrooms.) They're usually with completely different firms, too.
So you're suggesting that a patent attorney might intentionally write an ambiguous patent application that has to be litigated - wasting his client's money, his relationship with his client, and even his law license - just so that a litigator with another firm might get to try the case.
Doesn't that seem improbable and silly to you?
There's plenty of others.
In fact, there aren't. If you build your practice with expertise in semiconductor fabrication techniques, how many companies in the entire world need your services? A few dozen, maybe.
Patent prosecution firms are usually built around repeat business from a few large clients, with a smattering of smaller companies and sole inventors just to keep things interesting. Steady work from a single big client can provide full-time work for a dozen attorneys for years. Do you really think that's worth risking for a little extra business?
- David Stein
Patents allow idea protection but you need to have a single implementation developed well enough to disclose its workings to the public.
That is completely incorrect.
The relevant standard here is called PHOSITA: the invention must be sufficiently described to permit a "person having ordinary skill in the art" to make and use the invention without undue experimentation.
This requirement pertains to the clarity and completeness of the specification. It is not decided with reference to particular implementations, embodiments, or products. Patents are (correctly) granted every day for inventions that the inventor hasn't even begun to implement.
In short - as long as the examiner can make sense of the invention, and doesn't have any specific objections ("I don't think this part will actually work..."), this requirement is satisfied.
- David Stein
Don't they both (directly or indirectly) make more money the more ptents are granted?
No.
The USPTO is not profit-driven - it sets its fees to cover its operating costs. It doesn't make a lot of profit. And this is not a cancerous bureaucracy intent on growth - it's actually trying to reduce application filings, and it has embraced its need for more examiners with great reluctance.
Arguably, the goal of a patent attorney is not to get the most issued patents, either. The goal is to get many good patents issued. Filing bad patents that don't hold up in court tends to make clients stop using you.
- David Stein
So in sum, copyrights are used to prevent people from copying particular bits of source or binaries, but patents are used to prevent people from making identically functioning software, regardless of copying.
Your post is a good, concise, and accurate summary of the law.
However, to take this a step further - the problem is that there's a whole lot of divergence between "copyright covers expression; patent covers invention" and "copyright covers an embodiment [e.g., a written piece of software]; patent covers the operative concept embodied in it."
Only in the realm of software is this distinction interpreted this way. Embodiments of machines, chemicals, and industrial processes aren't generally copyrightable. Artistic aspects of them may be copyrightable - the sexy shape of the iPod; the distinctive hue of a particular dye - but it's not a general principle, right?
The madness all started when the software industry needed a way to squelch piracy, and seized on the field of copyright to patch the hole. To this end, the idea of "artistic expression" has been warped to a nonsensical extreme, covering any implementation of software - even if purely functional and utterly non-aesethetic (even if it's an invisible background process!)
And while any source code should be just as copyrightable as other types of writing, it doesn't follow that compiled binaries executing the instructions of the source code somehow inherit the copyright coverage of the source code. Is the "artistic expression" of the source code even apparent from the binary? Isn't it invisible, running in the background? If you learn a principle in a book and then use that principle in your own head, does the author own a copyright on your "derivative" thoughts?
The law of software copyright needs to be fixed, folks. It's pointless to tap the "idea/expression" legal fiction if the "expression" half is paradoxical and absurd.
- David Stein
I think you don't understand the word 'proxy' as it's used in that sentence.
"Proxy" can mean an agent - one who speaks on behalf of another. An executor of a will is a proxy for the deceased.
Based on your acerbic comment, I presume that you're reading "proxy" as "substitute." That's fine, and I could address that sentiment. But you're mis-addressing your vitriol, because the original post was ambiguous. (In fact, it's not even clear which way the original poster intended that comment.)
- David Stein
Sure it does, because of the disclosure factor. If inventions weren't patentable, tons of effort would be wasted in obscuring inventions to rely on trade secret law. RSA would have been created, but it might not have been published.
Incentivizing public disclosure is fully half of the reason for the patent system. The value there can't be underestimated. The software industry, in particular, engages in way too much cloak-and-dagger nonsense for DRM and bad security efforts.
In fact, this is probably true for the vast majority of inventors in the computer field.
Really? I'd like to assert that in software more than any other field, inventions are usually kept secret through closed-source distribution of compiled binaries. It's easier to reverse-engineer the mechanism of a machine than to decompile and analyze software. Even in pharmaceuticals, the invention is plainly set forth in scientific articles and a mountain of FDA filings.
- David Stein
That would be a pretty silly metric, since in any country - including the U.S. - many (most?) patent applicants are foreign companies.
The rate of patenting in a country is a good measure of the strength of a country's economy, since it relates to the interest of companies in selling their products there. But the USPTO has no control over the strength of the economy - no one will praise a patent office for somehow improving the economy with high rates of application or issuance.
- David Stein
Just ask the USPTO and patent lawyers!
*sigh* Any post that begins by conflating the interests of the USPTO and patent lawyers - two completely different groups with orthogonal goals - is difficult to take seriously. But looking past that...
The patent system is run by the USPTO + lawyers primarily for their benefit.
No one at the USPTO is getting rich off of the patent system. It's an administrative agency that sits there and fulfills a task. Government salaries suck with comparison to the public sector.
Um, yes, patent lawyers practice law for the benefit of their firms and their clients. Do you suggest something different? However, patent lawyers have very little control over "the system" - they simply use the system that's put in place by Congress and the courts.
USPTO generates a healthy profit for Uncle Sam too.
This has never been true in the history of patents! Even at the height of fee diversion (i.e., patent office budget surpluses siphoned off by the federal government), the amount of money diverted was a teeny, tiny drop in the bucket of the federal treasury. No, the USPTO basically covers its costs, and that's about it.
Therefore the system favors cranking out many low quality paptents.
Then why is the USPTO almost singularly pursuing a reduction in patenting? Most of the efforts of USPTO management are focused on reducing rates of issuance.
But the real money comes in when a patent is contested. This happens mostly when the patents are low quaility. Therefore patent lawyers score more out of low quality patents than high quality patents.
You're missing a key distinction here. Patent *attorneys* work with the USPTO to get patents to issue. Patent *litigators* fight over patents in court. They're never the same people, and rarely the same firm.
The LAST thing any patent attorney wants for a client is a low-quality patent. If the patent is litigated (again, by another firm) and found to be clearly invalid, that client is never going to hire the patent attorney again.
- David Stein
The essence of my complaint with your comment is the tone that posits the poor, poor PTO against the greedy and corrupt politicians and applicants.
Yep, that's a common misconception that warps many arguments about the USPTO (here on /., in Congress, and everywhere in between.)
The USPTO is not supposed to be the opponent of the applicant that issues patents only when it is defeated. It is not supposed to be a stopgap, or a dam regulating the rate of innovation.
Rather, the USPTO is supposed to be an impartial body that researches the technology, compares the invention to the prior art, and reaches the right conclusion about whether the application should be issued. Correctly issuing a patent should be just as joyous an occasion for the USPTO as correctly denying a patent.
Unfortunately, many forget that this is its role. These days, that includes USPTO management, which loudly and often proclaims its goal of raising its rates of rejection. Its efforts these days are mostly about giving examiners more power to reject applications, and throwing more arbitrary obstacles in the path of applicants.
Criminal prosecutors are tasked with proving the occurrence of crimes - NOT with increasing the number of people sitting in jail. Those are two very different goals, right? Same with the USPTO... it's lost its focus.
- David Stein