You've provided a lot of interesting links. I need to read and digest them before responding (I mean we are having one of the most intellectual discourse I've seen here on/., so I'm not going to muck it up by just blasting off another post). However...
Also, since I do not think patents are required to spur innovation in the software field and even hamper it, I think having no software patents is even a much better option than short-term software patents. You have the short-term protection already pretty much automatically by the combination of first-to-market, copyright and trade secret anyway.
first-to-market is great, but you still have to fight it out. Copyright buys you virtually nothing (even the SSRN article you provided echoes this) and trade secret doesn't buy you much because you would have to show that your competitor stole your trade secret. If they came up with it clean-room, you've got nothing on them. Combining them doesn't help much.
Like I said, I need to read what you posted before trying to reply. It would do neither side any good if I really responded beforehand.
You make some very good points, and make them very reasonably, which doesn't seem to happen on/. a lot.
Let me begin by saying though that the FTC report is meaningless. It is constantly derided as "so what" because the FTC has no say in patent matters as well as the fact that it is easier to criticize than to fix. I can tell a fat person to eat less, but that doesn't really fix the problem, nor is it really an insightful comment (the FTC's comments that is).
Once someone has a monopoly on something, he will be much less inclined to keep on innovating, since the competition is very much restricted in improving what he did
I completely disagree with this statement. While it sounds reasonable, I have yet to be shown anyone that acted this way. Look at Edison (1,093 patents). Look at Hammond (800 patents). These people got patents and kept innovating, often in the same areas of technology. A 20 year patent is great, but why not extend your monopoly by improving your tech and filing a patent on the improvement. *BAM* 25 year monopoly (assuming 5 years between filings). The lazy inventor is a reasonable idea, but not a realistic one.
In practice, programmers can barely understand the legalese of software patents.
This is because a) the patent is written poorly or b) the programmer is lazy. Seriously. I have written several patent applications that contain no legalese except for the language in the claims (the enabling detailed description uses all English or trade language). I have also asked programmers what they thought their previous patent applications (filed by another firm) discussed and their repsonse was "I don't know, I couldn't be bothered to read it." The ONLY reason I write claims in "claim-ese" is because certain words mean certain things in the patent world (e.g., avoid "contains" because it is exclusive).
especially when patents are applied to information entities, such as maths, interface designs, business methods etc
Yuo can't get a patent on maths though. The maths have to do something, especially in the real world if your from Europe (and I guessing that's whaere you are since no one here says maths;-) Business methods are also greatly frowned upon. Yes, Amazon got one. And the resulting ill will has made it much harder to get one now. UIs are not easy either unless, again, it interacts with the real world somehow (e.g., the double click). Usually UI is covered by copyright. While the most famous bad patents are, well, infamous, the majority of the patents aren't that bad, and really do stimulate innvoation. Typically, there is also so much push back by the PTO that you invariably do narrow the scope of your patent during prosecution because there is too much prior art.
In fact, there the cost of getting a patent is often much higher than the cost of the innovation itself.
I clicked on the link you provided because I wanted to see the facts before commenting, but it was the table of contents. Specifically, I believe this is possible in some cases. The majority however, this is not true. It costs up to $15k to file a patent applicaton. Add in, say, another $35k over the course of proecution. $50k over the 4 years it takes to get a patent in little compared to the salary of 1 of the often 4 engineers it takes to come up with somehting patentable.
I realise this discussion was about patents in general and not specifically software patents,
I will admit, whoheartedly in fact, software patents have really changed things up. I think 20 years for a software patent is way too long give the pace of software development. I also think that because softare is so enabling, a 20 year monopoly is holding the marketplace hostage for too long. You could write a routine/application/whatever in a couple weeks if the disclosure is sufficiently enabling.
patents to innovators, and which loses when overly broad patents are granted). It's not just competitors, since more competition means lower prices and more incentive to keep on innovating
Tell me, which is more an incentive to innovate (to the innovator):
A) You come up with an idea and we'll let you fight it out in the marketplace with four other companies OR
B) You come up with an idea and everyone in the U.S. will have to come to you for the solution. And it will be you and only you for the next 20 years.
well? OK. Patents increase innovation by forcing you to tell the world about your invention. Once the patent is up, ANYONE can take you patent and solve the problem you solved. The quid pro quo though is that in exchange for the disclosure, as a "thank you" for innovating and telling the world, you get the right to prevent others from implementing your solution. Which is a bigger thank you? that you get to fight it out in the marketplace, or that you and you alone can practice the invention?
Please explain to me how the patent system benefits society as a whole, as you've asserted, other than the quid pro quo I stated above i.e., the patent tells anyone how to solve a given problem, in exchange for which, you get the limited monopoly. If the monopoly didn't exist, their is no incentive to disclose the invention, and everyone could keep it as a trade secret. The disclosure is the benefit to society. What people have a problem with is the monopoly. But the monopoly is what drives the innovation.
With that kind of "business sense", your cash registers should be configured to regularly charge more than the advertised price and only back down if a customer challenges it.
This is a bad analogy because it involves screwing the customer over. A patent lets you put your competitors out of business or it makes it significantly hard for them to do what you do, thus giving you the advantage.
A better analogy would have been that everytime your comptetitors use their cash register, it deducts a little from their pockets and adds to yours, which is exactly what a patent license is.
A patent is a business tool to put your competitors out of business. Yes it sounds harsh, but a business is about maximizing profit. Not being a nice guy. Is this nice? No. Is this popular? No. Will this make you very very rich because you are the only one customers can turn to? Yes. See the motiviation for grabbing as much as you can? Why put X and Y out of business when you can put X, Y, Z, A, and B out? If the patent office says you can't claim what A and B do, fine. Amend your claims to cover X, Y, and Z. But what is the point of just going after X when you still are competing with Y, Z, A, and B?
I think Overated is a dick mod option. It literally is dinging someone because the moderator disagrees with another moderator. How is that fair? Yes, karma is dumb and completely pointless, but to say (and this is what negative moderation is) "I think your comment should not be viewed by others" reason: "Because I don't agree with someone that found it funny/insightful/etc" is just dumb. Especially considering in the part of the FAQ that deals with moderating it says "try not to use Overated and mod other comments up." So why have it??
But you're right, I don't metamod overrated. I haven't metamodded in months so I wasn't even aware it didn't show up. ah well. This will only be the 4th time I've changed my sig in 2 days.
Actually, I was just being funny. Picasa looks totally uninteresting to me. But you mentioned something like recognizing a person from a picture. Isn't this something the gov't has been trying to do for years and years with no (public) level of success? And yet you were annoyed because Google hasn't done it, for free no less? C'mon.
Sorry their warehouse full of Ph.D.s isn't working hard enough on R&D for you. Hopefully Google will pull their heads out of their asses and start innovating in some area.
you're right. I should have at least flipped it i.e., quoted the incorrect word and bolded the correct one. It would have been better to just leave his quote as is and bolded mine. Ah well. Such is the limitation of not having an edit button. Thanks for the pointer.
Don't use the term "intellectual-property infringment." Copyrights, patents, and trademarks are all intellectual property (as well as trade secret) but all have different laws that govern their (mis)use.
You don't. And the thing slashdotters don't seem to realize is that to take the patent bar, i.e. to be a patent lawyer/agent, you MUST have a science degree. So basically the only people that can become patent lawyers are scientists themselves (at least until they graduate)
Posting as an AC, I doubt you'll ever come back to this, but you couldn't be more wrong. Betwixt my 6 closest friends we have a PhD, a guy who almost failed high-school who became a marine, a Doctor, a guy who just quit college and smokes pot all day, a Court Clerk, and an IT support guy. We definitely do not share the same beliefs. Some are dyed-in-the-wool Christians, others are agnostic, and others are athiest. Same goes for political beliefs, though none of use like GWB. Sorry, my friends are all different, which is probably why we're still all friends.
Seriously, I just had a revelation: Bill Gates is to Microsoft as George W. Bush is to the USA. Both are big jerks running a huge entity. The CEO/president pisses off large populations of people by their questionable actions and "evil" decisions, but both are so powerful the majority of the employees/citizens are helpless to really do anything about it. BUT the USA isn't really evil, just GWB! GWB doesn't represent MY beliefs, or those of anyone I know. Maybe BillG doesn't represent anyone at MS and HE is the evil one. Everyone else is just trying to make a living.
I don't think they have the right to change the terms on you like that. I haven't seen the agreement, but if you are paying money (consideration) for an extended waranty (promise), then I don't think they can unilaterally modify the contract. Generally there must be consideration for the new promise e.g., if they want to exclude a piece of equipment after mutual assent is expressed, they then have to renegotiate the terms of the contract.
Thanks for bringing this up since I intend to buy an HDTV in the nxt 6 months and planned on getting the PSP (If I'm dropping ~2500 on a TV, I don't want to drop another ~2500 once the warranty runs out). I will read the extended warranty info VERY carefully now.
and it is possible to have all your evidence thrown out on some technicality based on subsection XYZ of the rules of evidence.
I think you're wrong in terms of timing and evidence being thrown out, but I could be wrong since I don't know what subsection of the FRE you are talking about. AFAIK, evidence can be inadmissable because it is not relevant, or it does not meet certain factual standards (e.g., heresay), but I don't know about timing.
As for what I was referring to, I was speaking of the examiner "throwing out" references during patent prosecution (meaning when the patent application was being examined). I cannot speak about what happnes during a trial though since that is outside of my experience.
Someone on/. that actually knows what they are talking about when it comes to the PTO. In addition to your insightful comment, it should be noted that art "found" after the application is filed, that does not predate the application filing date (by a year in the US) doesn't matter. If I filed an application on 1/1/2004, something that is found that is dated 1/2/2003 does not count as prior art unless it can be shown to exist before 1/1/2002 (well it can count, but I could swear behind it).
but isn't it possible that MS engineers never saw the BeOS code in action, nor did the examiner?? Prior art only matters if the examiner considered it during prosecution. In fact, prior art not being considered is the whole idea behind pubpat. If the examiner already signed off on it, then the patent is deemed valid in light of the prior art. If no one knew about it, then maybe people have a case on a re-exam.
How do you get prior art "thrown out on a technicality?" Either the prior art reads on the claims or it doesn't. The examiner would either sin off on the PA or reject the claims in an Office action based on it. It doesn't get "thrown out."
You need to write up a means of implementing your invention such that one of ordinary skill in the art could reduce the invention to practice without undue experimentation. Not just a general write up, but you are correct that you do not need a working model.
My response was obviously geared towards someone that writes OSS code as a hobby, not as their primary source of income. The parent to my post implied that anyone that coded OSS software should be compensated for their efforts now that someone has opened a linux.
your reply, while humorous, missed the point I was making. kthnxbye.
My Windows machine died, so I installed Mandrake on a Celeron 600. I can IM, email, surf, and run Citrix to work from home. It isn't fast, but it works.
I don't want to dick with config files or recompile the nightly build. I just want a computer I can work on at home that doesn't have a 12" screen (like my iBook) and Mandrake gave that to me, almost straight out of the gates (a little configuring of my wireless card). *shrug*
The warm fuzzies for knowing that not everything you do has to involve being paid for it? The joy of contributing to a great operating system because you want to?
Holy shit you people are wrong. First, to the grandparent's point, contract law is state law, not federal law. You do not need to violate federal law to "break the law." As for the parent of this post, if you mean breach of contract does not violate a state statute, you are most likely correct, it is not "breaking the law" in the criminal sense. But breach of contract certainly gives rise to a cause of action i.e., you can be sued for it civily.
Calling something someone didn't agree to a contract, as you incorrectly did, is like calling a bike frame without wheels a bicycle. A bicycle is defined by having two wheels. Likewise, mutual assent is required to have a contract. Don't bother saying "you can't enforce a contract someone didn't agree to" because if they didn't agree, then there is no "contract." There is a license, but it is not a contract until it is agreed to.
And while Valve cannot "take" your copy away from you, the act of playing the game is a manifestation of assent to the license. If you play the game, and know of the license, guess what? you've accepted it.
Lastly, EULA's have CERTAINLY held up in court. See ProCD v. Zeidenberg which held that shrinkwrap license ARE enforceable. I'd be interested to see the "case law" you are rferring to since ProCD is pretty much THE authority on this matter.
You don't discuss surgical procedures with a plumber. Neither should slashdoters pretend that they know what they are talking about when it comes to the law. And no, IANAL, but at least I do a little research* before shooting my mouth off.
Slashdot Mirror
Also, since I do not think patents are required to spur innovation in the software field and even hamper it, I think having no software patents is even a much better option than short-term software patents. You have the short-term protection already pretty much automatically by the combination of first-to-market, copyright and trade secret anyway.
first-to-market is great, but you still have to fight it out. Copyright buys you virtually nothing (even the SSRN article you provided echoes this) and trade secret doesn't buy you much because you would have to show that your competitor stole your trade secret. If they came up with it clean-room, you've got nothing on them. Combining them doesn't help much.
Like I said, I need to read what you posted before trying to reply. It would do neither side any good if I really responded beforehand.
-truth
Let me begin by saying though that the FTC report is meaningless. It is constantly derided as "so what" because the FTC has no say in patent matters as well as the fact that it is easier to criticize than to fix. I can tell a fat person to eat less, but that doesn't really fix the problem, nor is it really an insightful comment (the FTC's comments that is).
Once someone has a monopoly on something, he will be much less inclined to keep on innovating, since the competition is very much restricted in improving what he did
I completely disagree with this statement. While it sounds reasonable, I have yet to be shown anyone that acted this way. Look at Edison (1,093 patents). Look at Hammond (800 patents). These people got patents and kept innovating, often in the same areas of technology. A 20 year patent is great, but why not extend your monopoly by improving your tech and filing a patent on the improvement. *BAM* 25 year monopoly (assuming 5 years between filings). The lazy inventor is a reasonable idea, but not a realistic one.
In practice, programmers can barely understand the legalese of software patents.
This is because a) the patent is written poorly or b) the programmer is lazy. Seriously. I have written several patent applications that contain no legalese except for the language in the claims (the enabling detailed description uses all English or trade language). I have also asked programmers what they thought their previous patent applications (filed by another firm) discussed and their repsonse was "I don't know, I couldn't be bothered to read it." The ONLY reason I write claims in "claim-ese" is because certain words mean certain things in the patent world (e.g., avoid "contains" because it is exclusive).
especially when patents are applied to information entities, such as maths, interface designs, business methods etc
Yuo can't get a patent on maths though. The maths have to do something, especially in the real world if your from Europe (and I guessing that's whaere you are since no one here says maths ;-) Business methods are also greatly frowned upon. Yes, Amazon got one. And the resulting ill will has made it much harder to get one now. UIs are not easy either unless, again, it interacts with the real world somehow (e.g., the double click). Usually UI is covered by copyright. While the most famous bad patents are, well, infamous, the majority of the patents aren't that bad, and really do stimulate innvoation. Typically, there is also so much push back by the PTO that you invariably do narrow the scope of your patent during prosecution because there is too much prior art.
In fact, there the cost of getting a patent is often much higher than the cost of the innovation itself.
I clicked on the link you provided because I wanted to see the facts before commenting, but it was the table of contents. Specifically, I believe this is possible in some cases. The majority however, this is not true. It costs up to $15k to file a patent applicaton. Add in, say, another $35k over the course of proecution. $50k over the 4 years it takes to get a patent in little compared to the salary of 1 of the often 4 engineers it takes to come up with somehting patentable.
I realise this discussion was about patents in general and not specifically software patents,
I will admit, whoheartedly in fact, software patents have really changed things up. I think 20 years for a software patent is way too long give the pace of software development. I also think that because softare is so enabling, a 20 year monopoly is holding the marketplace hostage for too long. You could write a routine/application/whatever in a couple weeks if the disclosure is sufficiently enabling.
Tell me, which is more an incentive to innovate (to the innovator):
A) You come up with an idea and we'll let you fight it out in the marketplace with four other companies OR
B) You come up with an idea and everyone in the U.S. will have to come to you for the solution. And it will be you and only you for the next 20 years.
well? OK. Patents increase innovation by forcing you to tell the world about your invention. Once the patent is up, ANYONE can take you patent and solve the problem you solved. The quid pro quo though is that in exchange for the disclosure, as a "thank you" for innovating and telling the world, you get the right to prevent others from implementing your solution. Which is a bigger thank you? that you get to fight it out in the marketplace, or that you and you alone can practice the invention?
Please explain to me how the patent system benefits society as a whole, as you've asserted, other than the quid pro quo I stated above i.e., the patent tells anyone how to solve a given problem, in exchange for which, you get the limited monopoly. If the monopoly didn't exist, their is no incentive to disclose the invention, and everyone could keep it as a trade secret. The disclosure is the benefit to society. What people have a problem with is the monopoly. But the monopoly is what drives the innovation.
-truth
This is a bad analogy because it involves screwing the customer over. A patent lets you put your competitors out of business or it makes it significantly hard for them to do what you do, thus giving you the advantage.
A better analogy would have been that everytime your comptetitors use their cash register, it deducts a little from their pockets and adds to yours, which is exactly what a patent license is.
A patent is a business tool to put your competitors out of business. Yes it sounds harsh, but a business is about maximizing profit. Not being a nice guy. Is this nice? No. Is this popular? No. Will this make you very very rich because you are the only one customers can turn to? Yes. See the motiviation for grabbing as much as you can? Why put X and Y out of business when you can put X, Y, Z, A, and B out? If the patent office says you can't claim what A and B do, fine. Amend your claims to cover X, Y, and Z. But what is the point of just going after X when you still are competing with Y, Z, A, and B?
-truth
But you're right, I don't metamod overrated. I haven't metamodded in months so I wasn't even aware it didn't show up. ah well. This will only be the 4th time I've changed my sig in 2 days.
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Sorry their warehouse full of Ph.D.s isn't working hard enough on R&D for you. Hopefully Google will pull their heads out of their asses and start innovating in some area.
</sarcasm>
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Especially those that "taught" English in college and have access to slashdot. ;-)
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Thanks for bringing this up since I intend to buy an HDTV in the nxt 6 months and planned on getting the PSP (If I'm dropping ~2500 on a TV, I don't want to drop another ~2500 once the warranty runs out). I will read the extended warranty info VERY carefully now.
-truth
I think you're wrong in terms of timing and evidence being thrown out, but I could be wrong since I don't know what subsection of the FRE you are talking about. AFAIK, evidence can be inadmissable because it is not relevant, or it does not meet certain factual standards (e.g., heresay), but I don't know about timing.
As for what I was referring to, I was speaking of the examiner "throwing out" references during patent prosecution (meaning when the patent application was being examined). I cannot speak about what happnes during a trial though since that is outside of my experience.
-truth
hmmm.... I wonder if they have oil.
<firing six shooters in the air>Bring it on!</firing six shooters in the air>
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I felt a great disturbance in the Force, as if millions of voices suddenly cried out in terror and were suddenly silenced.
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your reply, while humorous, missed the point I was making. kthnxbye.
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I don't want to dick with config files or recompile the nightly build. I just want a computer I can work on at home that doesn't have a 12" screen (like my iBook) and Mandrake gave that to me, almost straight out of the gates (a little configuring of my wireless card). *shrug*
-truth
The warm fuzzies for knowing that not everything you do has to involve being paid for it? The joy of contributing to a great operating system because you want to?
-truth
Calling something someone didn't agree to a contract, as you incorrectly did, is like calling a bike frame without wheels a bicycle. A bicycle is defined by having two wheels. Likewise, mutual assent is required to have a contract. Don't bother saying "you can't enforce a contract someone didn't agree to" because if they didn't agree, then there is no "contract." There is a license, but it is not a contract until it is agreed to.
And while Valve cannot "take" your copy away from you, the act of playing the game is a manifestation of assent to the license. If you play the game, and know of the license, guess what? you've accepted it.
Lastly, EULA's have CERTAINLY held up in court. See ProCD v. Zeidenberg which held that shrinkwrap license ARE enforceable. I'd be interested to see the "case law" you are rferring to since ProCD is pretty much THE authority on this matter.
You don't discuss surgical procedures with a plumber. Neither should slashdoters pretend that they know what they are talking about when it comes to the law. And no, IANAL, but at least I do a little research* before shooting my mouth off.
* research does not include RTFA.
-truth