Clarification: The article does not indicate that Priceline.com was sued by Woolston for infringement of Woolston's patent.
Woolston in fact filed what I think is called an "interference" with the USPTO to try and establish that the Priceline patent is invalid, on the grounds that Woolston actually invented (was the first to invent) something that Priceline has claimed.
I assume that Woolston still has the option to sue Priceline for infringement of his patent, but has not yet done so.
I think I get it now--how's this restatement: If the (historical) purpose of a patent is to make sure that an inventor gets some money from his invention, a patent is not necessary for software inventions because the inventor can make money by selling the invention herself (she doesn't need the machine manufacturing capability that only a large company could have).
I don't think I can agree with that.
First, I don't agree with the premise that a patent is only for ensuring that the inventor gets paid. For example, it may be a good thing to encourage the inventor to disclose to the public how the invention works--such a good thing, in fact, that it may be worth giving the inventor an exclusive right to protect the invention in exchange for the disclosure (i.e., a patent), even if he could have made money without that protection.
[Note: Many people have a strong opinion that (i) patents (particularly patents for software inventions) do not in fact disclose anything useful, and/or (ii) there is no real need to encourage disclosure of software inventions in the first place (e.g., developers are open, sharing, and peer-focused and don't read patents anyway), so the intended Bargain (disclosure in exchange for exclusive right) provided by a patent is too expensive for the public, who is excluded from making or using the invention. But those are different arguments from what you're making here.]
Second, there is no guarantee that, even if the cost to manufacture is $0, that the inventor will make any money from the invention. Other software developers could independently develop a competing product (so no copyright protection). So your premise that the inventor needs to get paid could in fact support the use of patents for software inventions.
There are several good criticisms made here about the patent system in general, but it is not very persuasive that inventions in software should be treated any differently than inventions in other fields.
The lonely inventor in his garage could design and hand-mill a sample of his machine, but could never mass-produce one. The patent allowed him to get some money by selling the rights to manufacture it to a company that could.... Unfortunately for software (and also for business ideas) the costs are exactly reversed. Anybody capable of inventing something already has spent 100% of the manufacturing costs and already possesses the machinery necessary to produce the invention (ie a computer). The patent does not protect the small guy.
In the software scenario described, I agree that the inventor/programmer may not need the large company to provide manufacturing resources. In other words, it is possible that the inventor/programmer can "get some money" by selling the software product directly to consumers.
But how does the conclusion, "The patent does not protect the small guy," follow from this scenario? A patent would provide the inventor/programmer an exclusive right to his invention, and if he is motivated to "get some money," as the scenario assumes, this may provide the protection necessary to market the software product.
I expect if you check you will find that there are absolutly NO examples of any single inventors owning a patent on software or business methods.
I missed the point related to who actually owns a software patent. In the first example described, the "lonely" inventor/machinist sold his patent to a large manufacturing company; he doesn't own the patent.
Instead patents can be used now by large companies as the only method they have to prevent the little guy from starting up. This was true before but completely dwarfed by the need for expensive manufacturing facilities, so before patents did not screw up the market.
As noted ("This was true before..."), patents have always allowed companies (large or small) and individual patentholders to prevent someone else from making or using a claimed invention. But what does "the need for expensive manufacturing facilities" have to do with respect to the patentability of inventions in software?
My best guess at a restatement of the argument is: In olden days, large companies could have prevented the small guy inventor/machinist from entering the market with a competing (presumably infringing product) by asserting patents, but did not need to because the small guy could not afford to manufacture any competing products anyway. So the patents of large companies were only relevant in competition with other large companies.
Unfortunately, that argument just says that hardware patents are good because small inventors can get them (although they have to sell them to large companies?), but software patents are bad because large companies can get them. Can't small inventors get patents for software inventions, too? In fact, the author makes the point that small inventors do not need to sell software inventions to large companies--that sounds empowering for small (profit-minded) inventors/programmers vs. large companies.
There is also the problem that due to the average public's poor understanding of software, the equivalents of nuts and bolts are being patentened.
Of course, the "average public" does not actually allow patents. I take this statement to be a criticism of: (i) the expertise of the Examiners charged with examining inventions in software, (ii) the ability of the USPTO to search for prior art references relevant to inventions in software, and/or (iii) the presumption that something is patentable unless the USPTO can prove it isn't. Of these, (i) and (ii) are valid concerns, but may not be any more worrisome with respect to inventions in software and/or business practices than in any other technologies that the USPTO is just beginning to deal with, and (iii) is not unique to software.
Or a certain thread spacing on bolts is being patented after it has been adapted by virtually every manufacturer, forcing the inventor who cannot afford to license the patent to mill their own bolts and make a machine that nobody can fix because standard bolts don't fit.
This analogy to a hypothetical hardware invention clearly indicates that this is one of the costs of a patent system generally, irrespective of the subject matter of a given patent; it is not unique to patents on software inventions.
Today it is impossible to write any piece of software without violating patents.
I think the underlying criticism here is valid but not unique to software; it may be leveled at the patent system as a whole. In a worthwhile patent system the potential for chilling R&D (in any field) must be offset by benefits provided to the public by the patent system.
There is absolutely no reason for patents in this area, their only purpose is to deprive the small inventors patents are designed to protect, and move power to those able to afford the patents.
Yes, I think the issue of how much it costs a small inventor to be issued a patent (and to pay maintenance fees on once issued, and to enforce if infringed) is valid and must be addressed, but I don't understand the case being made for how that problem is unique to software. There is nothing in the above statement that is not also true in the first small guy inventor/machinist vs. large company example, except that that example assumed the "lonely inventor" could afford the machine patent.
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Woolston in fact filed what I think is called an "interference" with the USPTO to try and establish that the Priceline patent is invalid, on the grounds that Woolston actually invented (was the first to invent) something that Priceline has claimed.
I assume that Woolston still has the option to sue Priceline for infringement of his patent, but has not yet done so.
I think I get it now--how's this restatement: If the (historical) purpose of a patent is to make sure that an inventor gets some money from his invention, a patent is not necessary for software inventions because the inventor can make money by selling the invention herself (she doesn't need the machine manufacturing capability that only a large company could have).
I don't think I can agree with that.
First, I don't agree with the premise that a patent is only for ensuring that the inventor gets paid. For example, it may be a good thing to encourage the inventor to disclose to the public how the invention works--such a good thing, in fact, that it may be worth giving the inventor an exclusive right to protect the invention in exchange for the disclosure (i.e., a patent), even if he could have made money without that protection.
[Note: Many people have a strong opinion that (i) patents (particularly patents for software inventions) do not in fact disclose anything useful, and/or (ii) there is no real need to encourage disclosure of software inventions in the first place (e.g., developers are open, sharing, and peer-focused and don't read patents anyway), so the intended Bargain (disclosure in exchange for exclusive right) provided by a patent is too expensive for the public, who is excluded from making or using the invention. But those are different arguments from what you're making here.]
Second, there is no guarantee that, even if the cost to manufacture is $0, that the inventor will make any money from the invention. Other software developers could independently develop a competing product (so no copyright protection). So your premise that the inventor needs to get paid could in fact support the use of patents for software inventions.
The lonely inventor in his garage could design and hand-mill a sample of his machine, but could never mass-produce one. The patent allowed him to get some money by selling the rights to manufacture it to a company that could.... Unfortunately for software (and also for business ideas) the costs are exactly reversed. Anybody capable of inventing something already has spent 100% of the manufacturing costs and already possesses the machinery necessary to produce the invention (ie a computer). The patent does not protect the small guy.
In the software scenario described, I agree that the inventor/programmer may not need the large company to provide manufacturing resources. In other words, it is possible that the inventor/programmer can "get some money" by selling the software product directly to consumers.
But how does the conclusion, "The patent does not protect the small guy," follow from this scenario? A patent would provide the inventor/programmer an exclusive right to his invention, and if he is motivated to "get some money," as the scenario assumes, this may provide the protection necessary to market the software product.
I expect if you check you will find that there are absolutly NO examples of any single inventors owning a patent on software or business methods.
I missed the point related to who actually owns a software patent. In the first example described, the "lonely" inventor/machinist sold his patent to a large manufacturing company; he doesn't own the patent.
Instead patents can be used now by large companies as the only method they have to prevent the little guy from starting up. This was true before but completely dwarfed by the need for expensive manufacturing facilities, so before patents did not screw up the market.
As noted ("This was true before..."), patents have always allowed companies (large or small) and individual patentholders to prevent someone else from making or using a claimed invention. But what does "the need for expensive manufacturing facilities" have to do with respect to the patentability of inventions in software?
My best guess at a restatement of the argument is: In olden days, large companies could have prevented the small guy inventor/machinist from entering the market with a competing (presumably infringing product) by asserting patents, but did not need to because the small guy could not afford to manufacture any competing products anyway. So the patents of large companies were only relevant in competition with other large companies.
Unfortunately, that argument just says that hardware patents are good because small inventors can get them (although they have to sell them to large companies?), but software patents are bad because large companies can get them. Can't small inventors get patents for software inventions, too? In fact, the author makes the point that small inventors do not need to sell software inventions to large companies--that sounds empowering for small (profit-minded) inventors/programmers vs. large companies.
There is also the problem that due to the average public's poor understanding of software, the equivalents of nuts and bolts are being patentened.
Of course, the "average public" does not actually allow patents. I take this statement to be a criticism of: (i) the expertise of the Examiners charged with examining inventions in software, (ii) the ability of the USPTO to search for prior art references relevant to inventions in software, and/or (iii) the presumption that something is patentable unless the USPTO can prove it isn't. Of these, (i) and (ii) are valid concerns, but may not be any more worrisome with respect to inventions in software and/or business practices than in any other technologies that the USPTO is just beginning to deal with, and (iii) is not unique to software.
Or a certain thread spacing on bolts is being patented after it has been adapted by virtually every manufacturer, forcing the inventor who cannot afford to license the patent to mill their own bolts and make a machine that nobody can fix because standard bolts don't fit.
This analogy to a hypothetical hardware invention clearly indicates that this is one of the costs of a patent system generally, irrespective of the subject matter of a given patent; it is not unique to patents on software inventions.
Today it is impossible to write any piece of software without violating patents.
I think the underlying criticism here is valid but not unique to software; it may be leveled at the patent system as a whole. In a worthwhile patent system the potential for chilling R&D (in any field) must be offset by benefits provided to the public by the patent system.
There is absolutely no reason for patents in this area, their only purpose is to deprive the small inventors patents are designed to protect, and move power to those able to afford the patents.
Yes, I think the issue of how much it costs a small inventor to be issued a patent (and to pay maintenance fees on once issued, and to enforce if infringed) is valid and must be addressed, but I don't understand the case being made for how that problem is unique to software. There is nothing in the above statement that is not also true in the first small guy inventor/machinist vs. large company example, except that that example assumed the "lonely inventor" could afford the machine patent.