If you are at the end of a hard day's work, struggling with a tough problem and making no progress at all, even regressing at some points, take solace in this: you still did a lot more for the world than the guys at Lodsys
You would be surprised. I met someone this weekend at a wedding who works at a law firm that specialises in software patent suits, and he really didn't understand or even care. Outside of this and similar communities, no one has any idea that software shouldn't be patentable, or even that there are issues with it in the first place.
Not to mention that the shady practices are obfuscated by properly sterilized language, as in many other organizations. One does not "threaten small developers with expensive lawsuits", one merely "extracts value from investments".
Unfortunately, by choosing to license instead of crushing them early, companies like Google, Apple, IBM, Cisco and Accenture and government bodies like the IRS provided funding for the troll to grow and thrive.
It's relatively easy to say "enough is enough". Actually fighting back is harder and, at this point, almost impossible.
For the big companies, it's probably a lot more like paying off terrorists with hundreds of nuclear silos in hopes that they won't nuke you. The settlement they want is miniscule compared to the damage they can do to you.
> Unfortunately, by choosing to license instead of crushing them early, companies like Google, Apple, IBM, Cisco and Accenture and government bodies like the IRS provided funding for the troll to grow and thrive.
Reality is a bit more complex: none of those licensed from Lodsys, instead they have blanket licenses to all IP of Intellectual Ventures (the biggest patent troll in the world) as part of their initial investment in the company (a number of large, patent-warring company invested in IV, probably in the hope of weaponizing it down the road). And Abelow '078 was assigned to a (patent sub-troll) front company of IV (Ferrata Ethereal), therefore being accounted to as part of IV licensing. Which is why Apple, Google and Microsoft have licenses to Abelow '078.
Thanks for the clarification. In any case, Lodsys' site claims IBM, Cisco and Accenture to be clients. I assume those licensed directly from the troll.
I can not say for sure. According to a list of investors[0], Cisco is a licensing investor (same as Apple, Google, Microsoft, Nokia, Intel and a bunch of others) but IBM and Accenture are not.
Unfortunately, patent trolls don't really have anything to crush. They don't have products to countersue over, so at best you might manage to invalidate some of their patents, which won't stop them.
I really don't think the problem is software patents, it seems to me the real problem is that most software patents seem to be ridiculously trivial.
Here's an example: my employer, a rather small company has invested an enormous amount of resources in developing a specific algorithm. It took years of research and development, lots of money and brainpower, it's very far from being trivial (in fact it's so complicated I have to admit I don't understand some parts of it) and it's light years ahead (in terms of usefulness and speed) of any other algorithm with similar applications.
Obviously the last thing we want now is simply handing it over to our competitors, after all this work. If the patent system didn't guarantee us monopoly on using the fruits of our own R&D, this algorithm probably would not have been developed for a very long time, if ever, by anyone. It would have been innovation that never happened.
My point is that the threshold of what can patentable should by way higher, but I think we need a (software) patent system none the less.
I understand your viewpoint. My point is: what happens in the long term if people like Dijkstra patented their algorithms? I think we all have a stockpile of licenses to pay for almost any code, even a r"Hello World" (you are using a string, if it's unicode you need another patent!).
So, I think there are more winners and innovation "sacrificing" the software inventors side.
according to wiki, Dijkstra's algorithm was published in 1959. If he had a patent on it for 15 years and made enough money to cover his troubles, then I don't really see it as a bad thing. Now a days, you might say that 15 years is too long and maybe that's true, but sometimes it takes people a very long time to monetize their ideas (due to technical problems, bad business partners, time needed to develop connections in the business etc.)
But my argument is: if not only Dijkstra but a huge part of the comp sci community would have decided to patent their inventions it will be impossible to move forward in the field. Only the legal costs of "swimming" on this system will be prohibitive for the developers community.
I don't see it that way. The comp sci field moved forward because of the democratization of the personal computer where you have the freedom to develop what you want and distribute it yourself.
For example one of the mini revolutions was Turbo Pascal from Borland offering the compiler for few bucks when compilers were more expensive, with patents all prices go high and that means few people or companies can spend money on that.
Is there any reason the algorithm couldn't remain a trade secret? And is there any possible scenario where the long term good that comes from this patent will outweigh the long term good that will come from untethered innovation?
Is there any reason the algorithm couldn't remain a trade secret?
Reverse engineering.
And is there any possible scenario where the long term good that comes from this patent will outweigh the long term good that will come from untethered innovation?
Perhaps. In those situations where there would otherwise be no commercial development at all without the prospect of the monopoly a patent affords. In software, I would posit that there's more good that comes from the innovation.
I think the issue that most people have is that people who coincidentally develop an algorithm that serves the same functionality or operates in a similar way as your algorithm will be sued to hell, even though they'd never even heard of the work you'd done. A bigger issue is with people that patent every single idea they've ever had, never fully develop anything, then sue any person that's made a profit with a similar idea.
You have the right to keep your code confidential and protect it from theft, but people who are capable of making something similar with their own abilities shouldn't be punished.
Another solution would be to create a very inexpensive way to defend against a patent lawsuit. If defending yourself is trivial, the incentive to agree to extortion schemes is dramatically reduced.
A better one could be to make it profitable to defend against frivolous lawsuits like these. If the plaintiff is required to pay the legal bills of the defendant, plus a hefty margin awarded by the judge according to how frivolous the lawsuit was, we would turn the incentive backwards. That would prevent ridiculous patents like these to even reach a court and create a market for lawyers specialized in shooting down stupid lawsuits.
I'm having a hard time imagining how there could be a general way to introduce an inexpensive defense process. Do you suggest a public defender system? Would it be subsidized by additional patent application fees?
Additionally, keep in mind that road goes both ways. Suppose you devise something that is arguably worth a patent and suppose you later find one or many people infringing on your patent, far over the line of fair use. If legal defense is now cheap (dollars/time-wise), you may be stalled in the courts trying to legitimately defend your patent.
There is the approach of increasing punitive fines for unworthy suits or false claims. But patent law is messy. How do you prove the other party intentionally made false claims, wasting the courts time? Or what is an unworthy suit? Somewhat related to punitive enforcement measures, in one of our states a government official is automatically jailed for 1 or 2 nights if they close off an open-meeting no matter the reason. I personally think this is an appropriate punitive measure, but others may think it harsh.
I don't think either approach would work -- both would likely make the system worse. What we need are both a court system and patent office that are sufficiently staffed and have a minimum competence. (I don't mean to insult -- I say this in the context where an official is utterly out of their realm of expertise).
That situation is an unfortunate side effect. The point of patents is that the inventor requires an incentive (a limited term monopoly in case of patents) to make their methods publicly known. The protection is against the copiers, but since an independent developer is indistinguishable from a copier, they get excluded from using the idea as well.
I always thought that this is precisely why the patentable ideas are non-trivial.
This argument can be made against patents in general. If people want to argue that all patents are bad, that's fine, but most people draw a tenuous distinction between software patents and other kinds of patents. I agree with DrJokepu -- the real problem (assuming that you're not opposed to all patents) is that patents are being given for ideas that are moderately to extremely obvious.
It can only be a net win for society if the total price everyone pays to license a patent is less than the total cost of making each user reinvent it for themselves for the next twenty years. That's why obvious software patents are so bad—the basics of the young field weren't already claimed decades ago, the cost of "reinvention" is so low (one-click requires what, a napkin, a crayon, and half a beer?), and the licensing prices devolve to pure rent-seeking based on the necessity of the obvious idea.
What we need is some counter-balancing force that ensures patent license prices remain reasonable. Normally that's done by the threat of substitution or inventing-around, which doesn't work when USPTO screws up and allows claiming the whole problem space. The price especially needs to be reasonable for non-profit use, which is a software-specific issue made possible because our unit costs are also basically zero. It would also help if they tested patent claims for obviousness by giving someone the problem statement and seeing if they produce a solution off the cuff covered by the same claims.
The question I have is whether or not it is the intention of the patent system to protect against someone else independently developing the same thing. If that is indeed the intention, then I am opposed to all patents because I don't want this kind of protection to exist in any shape or form.
I'm not a lawyer or historian, but I suspect that protecting against independent invention may not have been the main goal of those who created the patents system. I suspect that this kind of protection may just be a side effect of assuming that it is generally impossible to tell whether or not an invention was arrived at independently and that it is generally impossible to keep the inner workings of an invention secret.
These assumptions are not true in the same way for software as for, say, the typewriter or a particular kind of elevator or even a chemical substance. That's why it may make sense to think about software patents seperately.
Your question assumes two things that I haven't said, implied and are simply untrue. I'm not sure if that's due to a misunderstanding on your part or a lack of clarity on my part.
First, it assumes that we want to be protected against "others independently developing a similar algorithm". Second, it assumes that I "believe that my company deserves to be protected" from such other people. We're not concerned about other people independently developing a similar algorithm as it's rather non-trivial and as I mentioned, it took an awful lot of effort to develop it. We're much more concerned about the very real problem that people (e.g. competitors) will use our research and work.
As for your second assumption, personally (and I'm not representing my employer here) I don't believe that we have the moral right to be protected from other people doing their research independently who reach the same results.
In lights of all this, I really don't know how to answer your question.
I was asking this question because protection against others independently developing a similar algorithm is what the patent system provides, and that's why many people, including myself, are opposed to it.
I wasn't assuming that you personally or even your employer actually wanted that kind of protection. So my rather rhetorical question was intended to highlight that discrepancy.
You want to prevent others from copying your work but what you do by patenting it is more than that. You prevent others from making or benefiting from their own original invention. Of course, as long as software patents exist, you don't have much choice.
I don't understand the "destroy software patents" crusade. "Destroy all patents" makes sense, and "improve all patents" makes sense, but why are software patents any different than device or chemical patents?
My main point is not limited to software patents, it's just more striking in this area because the drawbacks of patents are so clearly demonstrated every day. And contrary to other disciplines, copyright covers a lot of ground when it comes to software.
But to understand what might make software special you have to look no further than the things that are currently not patentable and never have been, like mathematical approaches and business processes.
So, for instance, if you invent some data mining approach based on graph theory and you write your formulas on a piece of paper or into your matlab or R worksheet you cannot patent it. If you express the same ideas in a couple of C functions you can patent it.
Another example. Say you are the first to have the idea of selling coke and sandwiches at gas stations. You cannot patent it. But if you are the first to have the idea of selling avatars from within some computer game, you can patent it. Why is that?
The differentiation between patentable and non patentable types of approaches and ideas is not something that was invented by software patent crusaders. It's right there in the law already.
The trouble is that it's a lot easier to copy an algorithm without in any way violating copyright than it is to copy it without violating a patent on it.
I'm not so sure about that. If the license prohibits reverse engineering and someone still does it, that's clearly a violation of the law. If a commercial company does it, it's going to be difficult for them to keep secret as some employees will surely know about it.
I agree that part of what patents intend to do, protecting original invention from copycats, is legitimate. But if it's done in a way that punishes original invention that seems counter productive to me.
If the law allows reverse engineering (like here in Germany) your license can prohibit it as much as it wants. It's still legal and no violation of the law.
I believe even in Germany you cannot use the results of reverse engineering to copy the product and sell it commercially without violating some copyright law. But I'm not denying that patents can sometimes be helpful to protect against copycats.
I just think that prohibiting original independent invention in order to prevent copying is absurd because it punishes exactly the people who are supposed to be the beneficiaries of patents.
>"protection against others independently developing a similar algorithm is what the patent system provides, and that's why many people, including myself, are opposed to it"
Flip this around. It is protection against others wasting research on something that has already been invented and [supposedly] enables them to add their research to your own and thus add effort rather than waste it. Is that not a noble cause?
Patents have a double purpose: One is to ensure implementation details of inventions enter the public domain and the second is to provide a limited monopoly as a bribe to ensure that the public domain will ultimately benefit.
In this way patents promote innovation, encouraging the release of new technological developments quickly to other practitioners in the art and so accelerate said development.
The only (large) part I see broken in the current patent system is that the duration of monopolies hasn't reduced to keep pace with the acceleration in the life cycle of new technologies.
Let's say company A and company B create the exact same alogorithim in the exact same time. Company A markets it much better and effectively "wins" the market. Should their success be determined by purely R&D alone? Since this is a rather unrealistic (albeit becoming more and more realistic) situation. Imagine a slightly more realistic scenario. Company A starts R&D day 1 and finishes day 100. Company B starts R&D day 50 and finishes day 125. But Company B has better management, marketing, etc. and (again) effectively wins the market.
Who gets precedence?
> We're much more concerned about the very real problem that people (e.g. competitors) will use our research and work.
So why don't you just keep it secret? Is this ultimately the question?
We're not concerned about other people independently developing a similar algorithm as it's rather non-trivial and as I mentioned, it took an awful lot of effort to develop it. We're much more concerned about the very real problem that people (e.g. competitors) will use our research and work.
Then what you do is keep your algorithm as a trade secret. The point of a patent is to publicize the invention so that others may benefit, and in compensation to the inventor they get a period of protection on its use so that they may license the invention and recoup R&D costs.
If your algorithm is non-trivial, wouldn't it be better protected by trade secret law? Patent law ostensibly requires you to disclose the algorithm (though patent attorneys seem to be very good at avoiding that), which would allow your competitors to develop competitive, but non-infringing algorithms. If your algorithm is so far ahead of everybody else, they don't stand a chance if you just keep it to yourselves, right?
"If the patent system didn't guarantee us monopoly on using the fruits of our own R&D, this algorithm probably would not have been developed for a very long time, if ever, by anyone. It would have been innovation that never happened."
You may not agree with the conclusion, but it does address your question.
What if your competitor came up with the same algorithm (or very similar) and performs as well both in time and space complexity... and all of this on their own, without actually taking a peek at your code. In that case would you go after them and sue them?
I imagine we would, simply because we can; we're a commercial entity after all. Personally (and I'm not representing my company here) I don't think that's a good thing; if they could prove that they independently reached the same results without using any of our research or work (or we couldn't prove the contrary), they should be protected. That's not the case though at the moment unfortunately.
I agree, its not the same case. The problem might be in 15 years from now, your algorithm might just become a very natural way to solve that specific problem and at that point how your company plays this out matters. My guess is the companies that are in the business of making, creating, producing and then selling software themselves, will be ok with it. These trolls like Lodsys try to neither produce nor create. A very important rule for the any type of patent should enforce "active" product in use/development.
Sadly, it might never happen.
I agree, its not the same case. The problem might be in 15 years from now, your algorithm might just become a very natural way to solve that specific problem and at that point how your company plays this out matters. My guess is the companies that are in the business of making, creating, producing and then selling software themselves, will be ok with it. These trolls like Lodsys try to neither produce nor create. A very important rule for the any type of patent should enforce "active" product in use/development.
Sadly, it might never happen.
Threshold is one problem. Duration is another. Here's a little story to illustrate why patent trolling is so evil.
I used to work at a software company that has an incentive program for developers that come up with patentable ideas, e.g. algorithms. You get a token prize when "your" patent gets submitted -- a pencil or something like that, I don't remember anymore. Then, if "your" patent gets accepted by USPTO, you get a more substantial prize, along the lines of a week at some comfy resort. A lot of my co-workers asked the same question: "Yeah, okay, that's nice, but there's a good chance that the company is going to make shitloads of money off a successful patent. A week at some resort doesn't really compare to that. Why don't you guys offer something that does?"
The guy who was explaining the incentive program responded: "Because you patent an idea and that's worth exactly nothing until you implement that idea in a product and sell that product to customers. You had the idea, but it's the company that has the means to implement it and market it and sell it." When you think about it, it's reasonable. Not precisely fair, but then again, things rarely are.
The point of this story is that software patents, just like all patents, are there to give the inventor a chance to implement the invention and make money from it, as a reward for the inventor's genius and hard work that went into coming up with an invention. That's obviously a good thing, because it gives you an incentive to invent something without having to fear that someone will simply steal your invention and make money off it.
Like every regulation with good intentions, it gets abused. What you said about trivial patents is just one way it gets abused. But another thing that makes it easy to abuse software patents is the duration of the patent. Twenty years is a hell of a long time in software. It practically invites patent trolling.
I've never heard a case where the do-or-do-not decision regarding a software project hinged on patents. That they are somehow needed to encourage innovation is a myth.
Besides, they're unfair. A typical software product might have perhaps 1% patented matter, and 99% copied from the "standard requirements" of the market segment it's in. The competitors spent the money developing the market to figure out that 99%, so if you use a quid pro quo measure then they have an automatic right to the 1% innovation the new player brings to the table.
I've never heard a case where the do-or-do-not decision regarding a software project hinged on patents.
Me neither, but that just means that patents, as they are now, don't serve their intended purpose. It doesn't mean that there's nothing that could be done to remedy that situation.
That they are somehow needed to encourage innovation is a myth.
Maybe it's more accurate to say that they (are intended to) prevent situation that seriously discourage innovation. If I come up with a really ingenious algorithm to do a hellishly complicated thing X, it would be nice to have the legal protection for a certain period while I struggle to get it to the point where it starts making me money. Protection from what? Protection from someone else stealing the algorithm and implementing it faster and beating me to the money making stage.
Besides, they're unfair. A typical software product might have perhaps 1% patented matter, and 99% copied from the "standard requirements" of the market segment it's in. The competitors spent the money developing the market to figure out that 99%, so if you use a quid pro quo measure then they have an automatic right to the 1% innovation the new player brings to the table.
First of all, the assumption that a "typical software product" should rely on a patent is not necessarily true. The company to which I was referring is in the business of developing software for semiconductor manufacturers. Their products are definitely not "typical software products". That specific market is pretty much cut-throat: there aren't many companies developing for it and, consequently, the customer always has you by short hairs. Patents are just another tool in their toolbox for dealing with the competition.
Second, I don't understand why you automatically assume that the patent holder isn't one of those players who "spent the money developing the market to figure out that 99%". I'm not defending patent trolls here. I'm defending the cases in which you want to protect that 1% that distinguishes you from the competition.
Third, even if the patent holder is a new player, how did you arrive at a conclusion that spending money on figuring out 99% of "standard requirements" somehow makes you have "an automatic right to the 1% innovation the new player brings to the table"? It sounds like a false sense of entitlement.
I think it's hard to predict what abolishing patents would do to innovation. For example, there are no patents in fashion, which actually ends up putting pressure on creators to be superinnovative to stay ahead of the copycats. Ref: http://www.ted.com/talks/view/lang///id/866
My personal opinion - for what that's worth - is that this kind of scenario comes pretty close to representing what would happen if there were no patents in software (or any other field for that matter). Innovation would still happen, and would probably happen even faster than it does now, because of the "arms race" effect. Simply put, a firm would be forced to innovate constantly, quickly and fiercely, to stay in front of its competitors.
Combined with the fact that I am appalled by the idea of use of government force to block someone from using an invention - that they may have arrived at independently - just because someone else patented it first; and my belief that there are too many smart people in the world for any really useful idea to stay undiscovered long, I advocate for simply abolishing the entire patent system.
While this has no bearing on the law, I've always thought that works of software that represent an actual effort of development comparable to physical invention should enjoy the benefit of patents. This is precisely what the patent system was designed to do - protect large research investments.
The abuse of the system for things that really don't require research and development is at issue here. I think proposals to abolish software patents entirely are probably wrong - but granting patents on XOR, or 1-click, or doing something obvious but on a computer system, are equally wrong.
Put it this way: if I have a problem to be solved by software that is really hard (such as your algorithm), then I'm going to research it before spending five man-years developing it, find you guys, and happily license your solution. No question. And if somebody reverse engineers your solution and sells it, then by God they should be penalized for violating your patent. This is why we have patents.
But if I have an idea like 1-click and pay an Indian developer $10 an hour for a week to develop it, this is simply not worthy of monopoly protection; your disclosing your solution isn't that valuable. If, seventeen years from now, after I've built an online shopping empire while you haven't, you sell your patent to Lodsys and they sue me for a billion dollars out of the blue, that is highway robbery, and it's not in any way helping society - and that is the situation we actually currently have.
> I've always thought that works of software that represent an actual effort of development comparable to physical invention should enjoy the benefit of patents.
There is no "effort" requirement for patents on physical inventions. There's also no "it was done by experts" requirement.
Unfortunately those of you who really deserve patents will not be able to make them rise above the noise of this lunacy. We're eventually going to have to go with "no software patents at all" to fix this. As a society, we just haven't outgrown the greedy thuggery that could allow us to respect each others work without gaming the system into tragedy of the commons territory.
A classic case of "see, this is why we can't have nice things".
I don't think that is inevitable. There is not an inherent reason why the Patent Office needs to award trivial patents. If they tighten up (or apply) their standards, the problem would be tremendously reduced.
Coming up with relevant criteria to determine the triviality of a software patent application doesn't seem simple at all. This means you need to hire experts in the field. This is where it gets interesting.
In most regulatory organizations where a high amount of expertise is required (like economics) you see a lot of corruption where companies hire out of and into these organizations specifically for the benefits of having representation on the inside. I.e. Henry Paulson.
So unless you have a good way of preventing these employees from ever working for Microsoft / Facebook / Apple / Google etc. then it's really not going to work out as intended.
IMO, just get rid of software patents. Sure it'll suck for some, but overall it's probably healthier for the industry. Plus it's nice and simple and doesn't employ a whole mess of lawyers.
The USPTO is overwhelmed and understaffed, so I can understand why they have poor QC on patents, particularly when they require technical knowledge to determine triviality.
What I don't get though is why it seems to be such a challenge to prove the invalidity of these crap patents in court. The google loss to bedrock (the linux kernel troll) is a high profile example of this. Maybe the standards that need to be looked at are around litigation and if enough crap is thrown out, all the incentive is gone and all of the sudden the USPTO application volume goes way down.
What I frequently wonder is why an overwhelmed and understaffed organization can approve so many patents. If I were in their position, my default would be to deny almost everything. Are they being told that approving patents is in the best interest of America? Is this a case of patriotism-gone-bad?
That's because of the way patent law is worded. I don't remember the exact wording (and i'm to lazy to look it up) but it's close to "a patent shall be granted except..."
Basically, they have to grant the patent if they can't come up with a good reason not to.
Perhaps changing the law to be worded "a patent shall not be granted except". Then require the applicants to show how their patent fits the requirements.
It is inevitable. No government can hire thousands of employees who can evaluate high levels of novelty or cleverness. People who can do so make more money and have more fun in the private sector.
Coca-cola has managed to deal with this for a hundred years. Google has managed it for 10 years. These things are called trade secrets. You protect them through NDAs, being intelligent with who has access to the information, and not open-sourcing the code.
In the case of Coca-cola, at least, the secret formula isn't even much of a concern anymore (I think it's been leaked a few times actually). Them protecting the formula is really just tradition and adds to their branding. What's important to them is keeping their brand power.
I'm OK with the idea of software patents in theory just like I'm OK with the idea of the death penalty for extreme crimes in theory. Because we live in an imperfect world made up of imperfect people, I don't support either in practice.
Perfect software patent system > no software patent system > broke software patent system, but I believe the perfect system is impossible, so I'd rather see the software patent system dismantled completely than exist in a broken state.
Except that you could already use and profit from the algorithm indefinitely without any patents in place whatsoever, simply by keeping the algorithm secret.
I don't understand how you would be handing it over to your competitors:
1) if it is proprietary software, just add a clause which forbids reverse engineering. If it really is as complex as you describe however, I doubt reverse engineering it would be an option.
2) if it is open source software, I don't see the big deal. Even if they get the algorithm your software can still stay steps ahead of theirs.
So what advantage would a patent even give you in this case?
Why not diminish the value of a patent once it's sold? That way you prevent companies like Lodsys buying and trolling, and if you put the money / time / resources into the development of something, you can reap the reward.
Just a thought, not the answer. But the system is totally ridiculous as it stands.
Second, Lodsys didn't even "invent" the idea. They purchased the patent and are now using it like a cluster bomb on the entire mobile app developer community.
The fact that Lodsys bought the patent and didn't invent the idea themselves seems entirely irrelevant to this dilemma. Unless you also think that if you acquire someone else's software, you don't have the right to sell it.
I think it is very relevant. The letter of the law may support Lodsys, but the spirit (protecting and hence encouraging the development and dissemination of new methods) does not. Laws are made for the well-being of the society, at least theoretically. If the circumstances are so much different that this benefit became a burden, I think the law should be overturned or ignored. I don't know if it can be legally ignored though, e.g. by a judge.
I see your point, but there's a significance that shouldn't be entirely overlooked.
Please correct me if I'm wrong, but is Lodsys not just a collector of intellectual property? There's something to say about the difference between a corporation buying intellectual property rights related to its business and a corporation seeking only to sponge off others labor, profits and wit, contributing neither economic activity nor social involvement.
I think it does matter, because it means certain behavior is more likely.
Companies that create patents are more likely to invest their time, money and effort into actually making things that will eventually be sold (in whatever fashion). This activity adds value to the economy. While it is possible for such companies to aggressively pursue their patents in the way that Lodsys has, they don't need to do it to survive, and I hope that the people who work there would rather spend time on more productive things. That's not a guarantee, of course.
Companies that merely collect patents, and exist solely to collect and profit off of the patents themselves, do not add value to the economy. They are parasites. Because they have no other way of generating revenue, we can expect them to behave in the way that Lodsys has.
If it was possible to design the IP laws so that patent trolling was not profitable, then I think that would be a good thing. I'm not sure if it's possible - but I think it's worthwhile to recognize that there is a relevant difference.
Patent trolls do add some value to the economy. The value they add is in the purchasing of the patent, leaving the original patent holder with a pile of cash they can use to build another product.
Then again, they take way more value out of the market, so it ends up being a negative.
I think that patent trolls typically acquire them from dying companies, not healthy ones. So while they're parasites on the economy, they're vultures to companies. That probably provides some liquidity to the economy, but I doubt it's significant.
Maybe somebody needs to move this issue to someplace more visible.
I'd like to introduce the concept of Movie Patents. I'd register a patent for the plot device of having the bad guy be the main character's best friend, with additional clauses for being his boss, advisor, or partner. I wouldn't ever make any movies. I'd just sit back and collect royalties from everybody who used my idea.
The reason behind this is that maybe then people who matter would actually notice how silly this concept is. It's so plainly obvious that it's a bad idea that regular people can finally understand what's going on. Eventually, people with the ability to make changes might actually find themselves forced to make changes.
Software, as big as it is, is just not that big. This issue can piss every single one of us off, and it won't make the NBC Nightly News. It can't piss off the people it needs to piss off in order to get it fixed, so chances are it will stay unfixed indefinitely.
But copyright is not about mere similarity: if two people reach the same plot device completely independently (or from a common source) there is no copyright infringement case. Whereas the same thing in the world of patents is a patent infringement case.
Additionally, to own copyright, you would actually have to _create_ a product/movie/etc. How any patent holder can sue without actually creating or using their own patent is beyond me.
Copyrights are indeed transferable. In fact, many of the most well-known free software projects rely on this fact (e.g., should they want to relicense, or to make it easier to defend copyright ownership in court by having a single legal entity behind it).
I think the point mluiten is making is that you have to actually create the content (or pay someone to create it) to have copyright, whereas you don't have to implement anything to have a patent granted. Since content creation is much more expensive than content distribution, there would be no economic incentives for "copyright trolls."
Actually there are lots of copyright trolls, especially in the cases where the content is cheap to make (as in time invested) and cheap to distribute -- like news articles, music or photography.
Say you've got a popular photo, you can transfer the litigious rights of it to a copyright troll and that troll will then sue everyone using it.
Totally not copyright. Copyright applies to software too, but patents are the one everyone cares about. The idea of patenting plots is a good one. In fact, it might even be legal _except_ that everything that can be done in a book has been done already. Software is such a young field these immodest trolls are able to exploit them.
So to clarify: Saying two different movies both of which has the "friend turns out to be bad" are copies is wrong; that's just not enough of a similarity to base a copyright case on. However, if you happen to find a way to patent it (which you probably could if there hasn't been prior art), you would be able to sue for patent infringement.
>"everything that can be done in a book has been done already"
Doubtful. But, given that if diversity in movie plots benefits mankind (!) then offering an incentive to develop a new plot could be worth it. If the plot is entirely disclosed so that it can be used for free by anyone in a few years then is this not a benefit?
"A Plot or Storyline Patent application seeks to patent the underlying novel and nonobvious storyline of a fictional story. Such protection is to be contrasted from the copyright protection of one of millions of possible expressions of an underlying storyline. The field of possible applications is broad, and may tentatively be split into an entertainment-advertisement dichotomy. The epitome of an entertainment application is an original, thought-provoking, often shockingly unique movie plot. Several potentially patentable features may have been found in the plots of, Memento, The Thirteenth Floor, Being John Malkovich, Butterfly Effect, The Game, Fight Club, The Matrix, Total Recall, The Truman Show, Minority Report, The Village, Groundhog Day, and Eternal Sunshine of the Spotless Mind, to name a few. The epitome of an advertisement application is one of the many thoughtfully hilarious Super Bowl commercials."
The Journal of the Patent and Trademark Office Society had an article on the subject in 2004. An inventor/agent who'd read the article promptly submitted several applications.
And beyond just being... questionable as a type of invention, the applications seem eager to see just how broad such claims might be:
1. A process of relaying a story having a timeline and a unique plot involving characters, comprising: indicating that a first character experiences dj vu to mask an actual event.
The problem is that as soon as you put the word "software" in front of the word "patent" during a discussion you can actually see eyes glaze over and brains shut off in the person you are talking to.
It's just easier for representatives to ignore this. That or they see the issue as niche, and therefore don't pay attention.
Yes, the same ridiculous rules that apply to software MUST apply to something more mainstream so that it gets noticed.
That is actually a very insightful way to look at it. Furthermore, You can have the same story, but the value of the movie is not in the plot itself. The value is on how well it is executed. Acting, dialogs, photography, special effects, etc.
That's kind of the point. Patenting plots is directly analogous to patenting software: you can have the same feature, but the value is in how well it is executed: language it was written in, data structures used, graphic design elements, etc.
I spent a week vacation with 2 friends who work at the patent office, so w e had time to discuss over beers. They don't believe there is a problem. They rely so heavily on prior art, and have trouble with the very concept that something was too obvious for the first 20 programmers to want to patent it, so prior art is very incomplete. I show them 1 click, they tell me that if it was that obvious someone would have patented it before. They refuse to consider the "skilled in the art" obviousness test because they say it's too easy to believe something is obvious after it's been explained to me.
I can believe it's too easy to believe that something non-obvious is obvious once you've understood it. But that doesn't mean that some things aren't legitimately obvious. It seems like we ought to take an empirical approach to distinguishing which are which -- take skilled engineers either in groups or singly who haven't heard of a given solution, pose them the problem that the solution is meant to solve, let them brainstorm or think for some fixed amount of time, and see if anything they come up with largely reproduces the solution in mind. If fewer than k engineers are needed before someone thinks of it, then it's obvious. If more than l > k engineers are needed before someone thinks of it, then it's not obvious. If somewhere between k and l engineers are needed, then maybe you still get to argue about it. On a related note, I think I have a new strategy for generating interview questions.
They refuse to consider the "skilled in the art" obviousness test
The law includes an obviousness test for a reason. If Congress intended prior patent applications to be the sole test, they would have said so. The patent office is ignoring the law to the detriment of all of us.
Fred's argument is filled with hypocrisy. It's akin to saying VCs kill innovation because they make it harder for bootstrapping companies to survive.
If Lodsys is a patent troll, then Fred is an equity troll. When Lodsys purchased the patent, the inventor got PAID. When investors purchase stock in a company, the founders (and in the case of an IPO or acquisition, the VC's) get PAID.
This is virtually the same principle.
Besides, Lodsys "is seeking 0.575% of US revenue over for the period of the notice letter to the expiration of the patent, plus applicable past usage." That's hardly enough to kill innovation.
I'm just fed up with the stupidity of the status quo. As a number of posts have pointed out, the lawyers, Patent Office, etc. generally don't see this as a problem. People like us who actually want to create new things ... we're the ones who are the losers.
This is another instance where it would have been beneficial if all software professionals belonged to a Guild or union. If we were organized, at least there is some sliver of a chance that we'd be able to have an influence on the legislative process. If that fails, we would just not work to create software patents.
Within ten years of such a guild's creation, it would be in support of patent law and probably lobbying for it to be strengthened. By creating such a guild, you create guild leadership, and leadership of guilds(/unions) tend to prefer stability and larger organizations over a rich array of smaller companies that make it much harder to exert control.
Heh ... I'm just reading Hackers and Painters ... I think it said some of the greatest programmers subscribe to Libertarianism, and gives good reasons why. Touche!
I think America's patent & copyright laws are in need of a serious rethinking in the digital age, but what are we the people doing about it? I would love to get involved (or donate) but I'm not aware of any credible groups or projects making strides to help bring about such a change. Any noteworthy efforts out there that I should know about?
The Electronic Frontier Foundation ( http://www.eff.org/issues/patents ) is working at it. They're starting off with getting the most ridiculous patents reexamined by the patent office in their Patent Busting project http://w2.eff.org/patent/ . They've succeeded in having a number of patents reexamined and some narrowed or invalidated.
They also lobby for patent reform. They're exactly the credible group you're looking for, in my opinion. Here's part of their statement on the patent page:
There are many ways to promote better patent quality and a vibrant
knowledge commons. One approach is to advocate for good legislation in
Congress and proper interpretation of that legislation by the courts.
Another is to promote enforcement efforts, such as the reexamination of
bogus patents. EFF employs both approaches to protect the public
interest while supporting innovation.
So all of technology including manufacturing has gotten quicker, faster, overall better, but the patent system hasn't changed. Also the entire cycle of a company is speeding up. An easy example the time companies that are listed on the s&p 500 are getting shorter. Instead of getting rid of patents can we just shorten the time that they are valid. Say 5 years.
>"They [software patents] are a tax on innovation."
While I tend to agree in general, the Lodsys situation is not a particularly good example in support of the position from an intellectual standpoint, though it may be good for rallying the troops. This is because Apple's actions in regard to in app purchases (IAP's) have been explicitly anti-innovation, i.e. Apple has required a specific monetizable IAP protocol in lieu of allowing developers to innovate (one does not need to even get into questions regarding the innovation raised by Apple's patent portfolio regarding UX elements). Let us remember that developers are only vulnerable because they are complying with a technical mandate of their agreement with Apple and that this mandate is solely intended to produce uniformity within the IOS ecosystem. Given Apple's patent portfolio, they may have far more to gain in terms of IP protection by upholding Lodsys's position than by fighting it.
The whole thing is nuts. I can't understand why our goverment [sic] allows this shit to go on
Because software and technology are like magic to a large part of the population, including a large segment of those involved in government and the judiciary.
Patents are just another specialized form of legalese. It's obvious we need better ways of challenging patents and filtering them in the first place.
Posting in this kind of threads is always bringing karma points and leaving me vaguely unsatisfied.
Lots of people speak about the "stupidity" of it all. I see no stupidity here. Just the normal, to-be-expected lean of a big government toward protecting the incumbents.
Also I think people should speak more often about drastically shortening copyright and patent terms. They are both very useful, even in controversial domains like software or biotech (patenting genes). The problem is that the situation is waay skewed one way. If you want to bring it closer to normal, start asking for 1 year patent terms and 3 year copyright.
First, you can easily leave old company behind and establish a new, clean one, transfering all assets. Second you can have a separate company (like an agent) for doing business in US. Third, why do you need, as a software company, to do any business IN US anyway? WITH US residents you can without any worries.
An idea I will throw out there: I always wondered why anyone should be able to hold onto an idea (patent it) if they don't use it. I can't help but wonder if the best way to fix the patent system isn't to overhaul it -- which would be nearly impossible to do due to entrenched interests -- but instead invalidate all patents if they aren't used within a certain time period by the rights holder. In other words, use it or lose it.
No. 'Using it' would mean distributing a product that directly makes use of the patented technology.
In practice, however, this will simply force patent trolls to jump through a few more hoops and find the least expensive way to distribute the product in some form in order to defeat the intent of the law while following its letter.
I'm not a fan of sotware patents, but perhaps there's a halfway house towards getting rid of them:
Make software patents only holdable by a real person (i.e. not a corporation), and not transferable. Any money received from a patent infringement lawsuit would be paid to that named person.
That way, they can be used for their original purpose (to protect small inventors and allow them to build a larger business), but can't be collected by the trolls.
(It would also give companies an incentive to keep 'their' patent owners happy).
Just an idea... I'm sure there's a glaring hole in it somewhere.
Well then, trolls would start 'hiring' these inventors (maybe as a contractor for just a period of legal battles) and keep pursuing their lucrative business.
Now I'm in Europe where this don't apply, but we actually had plans making our platform available in U.S. later on with something that has to do with tagging images - which itself is hardly any innovation (?!!)!. I mean, c'mon. We will now probably avoid that and look east instead. I'm still fascinated that they managed to get thorugh with this, almost like the 1-click-purchase that Amazon trying to paten. It's almost like a fairy tale - with no happy ending.
Amazon didn't just try to patent one-click purchasing. They actually hold said patent. They don't enforce it, largely because O'Reilly found prior art that could destroy it if Amazon ever oversteps, but they do hold the patent.
That's the central travesty here. Possibly if you're a patent attorney, you really do think purchasing with one click is a detailed and arcane technology the development of which is expensive enough to require a 20-year monopoly, but all that tells me is that patent attorneys are somewhat dim people who wouldn't understand productive work if it bit them in the face.
Alright, Fred. We all agree with you here, the people you need to convince are the ones writing the laws. You're a wealthy and powerful person, who is good friends with other wealthy and powerful people, so why not leverage that? Hire a lobbying firm, get actively involved in the cause.
Whatever you do, don't count on Reddit and Hacker News to do it for you, that's just slacktivism.
Exactly. We all sit around here and preach to the choir.
I don't know that anyone really knows how or what to do here. How does a non-mainstream issue like this get into the public eye in such a way that anyone but our niche gives a crap?
Lastly, we have to ask why they REALLY exist. What is REALLY going on. Where is the money in all this, who's making the most?
If Big Software Corp A wants patents to stick around, and the legislator wants Big Software Corp A's money for the next election, do they have any interest in representing the people, or just the corporation?
In this situation, the number of PEOPLE who don't want these patents has to surpass the influence of the large corporations who do want software patents to stay as they are. I just don't see this happening.
Just out of curiosity, when is the last time you talked with your representative in Congress? (I know, I'm assuming you are based in the USA)
I ask because I find a high correlation between this particular point of view : "entity 'x' whom is unassailable, is corrupting the politician I voted in to represent me." And people who have neither voted, nor talked with any representative who was either elected or was trying to be elected.
Here is my idea on 'what to do' here, let me know if it sounds reasonable or not.
My idea is that a group of technologists work with Congress and the Patent and Trademark office to take a look at the existing processes and goals and then put together a program for moving the existing patent law into something that makes sense and serves the needs of inventors without creating opportunities for commercial extortion.
The question is if it is more effective to hack politics through the traditional way, ie lobbying and being involved in politics, or if you can do better by being a hacker/entrepreneur.
Excellent! That is another great way to help out. I tell people that democracy is a participation sport, it's so much more effective to do something about your concerns than to simply complain about them, and doing something isn't all that hard.
true. we are doing some stuff on this front and we will do more. but getting our thoughts out there is never bad. this post got over 50,000 visits today alone. that's not a small number
Most hackers already know this, and most of them agree; however, that doesn't mean everyone in business does, and this article has a broader target audience than just hackers. This issue doesn't have nearly enough exposure for non-hackers.
Not too long ago, I attended a large meeting of software business people. They needed to find or write appropriate collaboration software for a particular aspect of their community, and the discussion had pretty much taken it as a given that if they ended up developing the software it would get released as OSS. At one point, someone in the room (who had previously introduced themselves as a business founder) said something to the effect of "We're all trying to build businesses on software, so isn't Open Source undermining everything we do here?", with some further comments about the incompatibility of OSS and business. They got a pile of shocked glares, with expressions that plainly said "where have you been for the last decade?", and someone quickly and kindly preempted the dozen responses they were about to get with a brief "no, suffice it to say there are a lot of people building successful businesses on Open Source, and further explanations should wait until after this meeting".
Never assume that everyone understands something just because everyone you know understands it, even if everyone you know understands it to the point of not even needing to hear about it anymore.
The cave man who invented 'wheel' was knocking on my door today.. apparently he was granted a 4k year patent for cart wheels by Unbelievably Sloppy Patent Troll Office (USPTO)...
The point of a patent is to ensure that ideas are made public, so that all can benefit from them. In exchange, the inventor gets their time-limited monopoly on the idea.
Unfortunately software patents are useless for this purpose: they don't fulfil the function of making ideas public. Who, in this day and age, refers to a patent for the details of an algorithm?
I would argue that open-source software, in many ways, succeeds where software patents fail.
192 comments
[ 2.2 ms ] story [ 142 ms ] threadEdit: A bit unfair and stereo-typing.. I'm sure there are good people working at Lodsys that got sucked in...
It's relatively easy to say "enough is enough". Actually fighting back is harder and, at this point, almost impossible.
Reality is a bit more complex: none of those licensed from Lodsys, instead they have blanket licenses to all IP of Intellectual Ventures (the biggest patent troll in the world) as part of their initial investment in the company (a number of large, patent-warring company invested in IV, probably in the hope of weaponizing it down the road). And Abelow '078 was assigned to a (patent sub-troll) front company of IV (Ferrata Ethereal), therefore being accounted to as part of IV licensing. Which is why Apple, Google and Microsoft have licenses to Abelow '078.
[0] http://www.patentlyo.com/patent/2011/05/intellectual-venture...
Here's an example: my employer, a rather small company has invested an enormous amount of resources in developing a specific algorithm. It took years of research and development, lots of money and brainpower, it's very far from being trivial (in fact it's so complicated I have to admit I don't understand some parts of it) and it's light years ahead (in terms of usefulness and speed) of any other algorithm with similar applications.
Obviously the last thing we want now is simply handing it over to our competitors, after all this work. If the patent system didn't guarantee us monopoly on using the fruits of our own R&D, this algorithm probably would not have been developed for a very long time, if ever, by anyone. It would have been innovation that never happened.
My point is that the threshold of what can patentable should by way higher, but I think we need a (software) patent system none the less.
Yours sounds like an edge case. The real question is what's best for the industry as a whole?
So, I think there are more winners and innovation "sacrificing" the software inventors side.
For example one of the mini revolutions was Turbo Pascal from Borland offering the compiler for few bucks when compilers were more expensive, with patents all prices go high and that means few people or companies can spend money on that.
Reverse engineering.
And is there any possible scenario where the long term good that comes from this patent will outweigh the long term good that will come from untethered innovation?
Perhaps. In those situations where there would otherwise be no commercial development at all without the prospect of the monopoly a patent affords. In software, I would posit that there's more good that comes from the innovation.
You have the right to keep your code confidential and protect it from theft, but people who are capable of making something similar with their own abilities shouldn't be punished.
A better one could be to make it profitable to defend against frivolous lawsuits like these. If the plaintiff is required to pay the legal bills of the defendant, plus a hefty margin awarded by the judge according to how frivolous the lawsuit was, we would turn the incentive backwards. That would prevent ridiculous patents like these to even reach a court and create a market for lawyers specialized in shooting down stupid lawsuits.
Additionally, keep in mind that road goes both ways. Suppose you devise something that is arguably worth a patent and suppose you later find one or many people infringing on your patent, far over the line of fair use. If legal defense is now cheap (dollars/time-wise), you may be stalled in the courts trying to legitimately defend your patent.
There is the approach of increasing punitive fines for unworthy suits or false claims. But patent law is messy. How do you prove the other party intentionally made false claims, wasting the courts time? Or what is an unworthy suit? Somewhat related to punitive enforcement measures, in one of our states a government official is automatically jailed for 1 or 2 nights if they close off an open-meeting no matter the reason. I personally think this is an appropriate punitive measure, but others may think it harsh.
I don't think either approach would work -- both would likely make the system worse. What we need are both a court system and patent office that are sufficiently staffed and have a minimum competence. (I don't mean to insult -- I say this in the context where an official is utterly out of their realm of expertise).
I always thought that this is precisely why the patentable ideas are non-trivial.
But even non-trivial ideas tend to occur to several people at once, which is a part of the problem.
What we need is some counter-balancing force that ensures patent license prices remain reasonable. Normally that's done by the threat of substitution or inventing-around, which doesn't work when USPTO screws up and allows claiming the whole problem space. The price especially needs to be reasonable for non-profit use, which is a software-specific issue made possible because our unit costs are also basically zero. It would also help if they tested patent claims for obviousness by giving someone the problem statement and seeing if they produce a solution off the cuff covered by the same claims.
I'm not a lawyer or historian, but I suspect that protecting against independent invention may not have been the main goal of those who created the patents system. I suspect that this kind of protection may just be a side effect of assuming that it is generally impossible to tell whether or not an invention was arrived at independently and that it is generally impossible to keep the inner workings of an invention secret.
These assumptions are not true in the same way for software as for, say, the typewriter or a particular kind of elevator or even a chemical substance. That's why it may make sense to think about software patents seperately.
First, it assumes that we want to be protected against "others independently developing a similar algorithm". Second, it assumes that I "believe that my company deserves to be protected" from such other people. We're not concerned about other people independently developing a similar algorithm as it's rather non-trivial and as I mentioned, it took an awful lot of effort to develop it. We're much more concerned about the very real problem that people (e.g. competitors) will use our research and work.
As for your second assumption, personally (and I'm not representing my employer here) I don't believe that we have the moral right to be protected from other people doing their research independently who reach the same results.
In lights of all this, I really don't know how to answer your question.
These are merely two perspectives from which we can view the same phenomenon.
How is that plausible? Aren't these trade secrets? Is your research/work publicly visible?
They sell the product to customers, other people spend a small amount of time reverse-engineering how it was done, and copy it.
I wasn't assuming that you personally or even your employer actually wanted that kind of protection. So my rather rhetorical question was intended to highlight that discrepancy.
You want to prevent others from copying your work but what you do by patenting it is more than that. You prevent others from making or benefiting from their own original invention. Of course, as long as software patents exist, you don't have much choice.
I don't understand the "destroy software patents" crusade. "Destroy all patents" makes sense, and "improve all patents" makes sense, but why are software patents any different than device or chemical patents?
But to understand what might make software special you have to look no further than the things that are currently not patentable and never have been, like mathematical approaches and business processes.
So, for instance, if you invent some data mining approach based on graph theory and you write your formulas on a piece of paper or into your matlab or R worksheet you cannot patent it. If you express the same ideas in a couple of C functions you can patent it.
Another example. Say you are the first to have the idea of selling coke and sandwiches at gas stations. You cannot patent it. But if you are the first to have the idea of selling avatars from within some computer game, you can patent it. Why is that?
The differentiation between patentable and non patentable types of approaches and ideas is not something that was invented by software patent crusaders. It's right there in the law already.
I agree that part of what patents intend to do, protecting original invention from copycats, is legitimate. But if it's done in a way that punishes original invention that seems counter productive to me.
I just think that prohibiting original independent invention in order to prevent copying is absurd because it punishes exactly the people who are supposed to be the beneficiaries of patents.
Flip this around. It is protection against others wasting research on something that has already been invented and [supposedly] enables them to add their research to your own and thus add effort rather than waste it. Is that not a noble cause?
Patents have a double purpose: One is to ensure implementation details of inventions enter the public domain and the second is to provide a limited monopoly as a bribe to ensure that the public domain will ultimately benefit.
In this way patents promote innovation, encouraging the release of new technological developments quickly to other practitioners in the art and so accelerate said development.
The only (large) part I see broken in the current patent system is that the duration of monopolies hasn't reduced to keep pace with the acceleration in the life cycle of new technologies.
Let's say company A and company B create the exact same alogorithim in the exact same time. Company A markets it much better and effectively "wins" the market. Should their success be determined by purely R&D alone? Since this is a rather unrealistic (albeit becoming more and more realistic) situation. Imagine a slightly more realistic scenario. Company A starts R&D day 1 and finishes day 100. Company B starts R&D day 50 and finishes day 125. But Company B has better management, marketing, etc. and (again) effectively wins the market.
Who gets precedence?
> We're much more concerned about the very real problem that people (e.g. competitors) will use our research and work.
So why don't you just keep it secret? Is this ultimately the question?
Then what you do is keep your algorithm as a trade secret. The point of a patent is to publicize the invention so that others may benefit, and in compensation to the inventor they get a period of protection on its use so that they may license the invention and recoup R&D costs.
"If the patent system didn't guarantee us monopoly on using the fruits of our own R&D, this algorithm probably would not have been developed for a very long time, if ever, by anyone. It would have been innovation that never happened."
You may not agree with the conclusion, but it does address your question.
I used to work at a software company that has an incentive program for developers that come up with patentable ideas, e.g. algorithms. You get a token prize when "your" patent gets submitted -- a pencil or something like that, I don't remember anymore. Then, if "your" patent gets accepted by USPTO, you get a more substantial prize, along the lines of a week at some comfy resort. A lot of my co-workers asked the same question: "Yeah, okay, that's nice, but there's a good chance that the company is going to make shitloads of money off a successful patent. A week at some resort doesn't really compare to that. Why don't you guys offer something that does?"
The guy who was explaining the incentive program responded: "Because you patent an idea and that's worth exactly nothing until you implement that idea in a product and sell that product to customers. You had the idea, but it's the company that has the means to implement it and market it and sell it." When you think about it, it's reasonable. Not precisely fair, but then again, things rarely are.
The point of this story is that software patents, just like all patents, are there to give the inventor a chance to implement the invention and make money from it, as a reward for the inventor's genius and hard work that went into coming up with an invention. That's obviously a good thing, because it gives you an incentive to invent something without having to fear that someone will simply steal your invention and make money off it.
Like every regulation with good intentions, it gets abused. What you said about trivial patents is just one way it gets abused. But another thing that makes it easy to abuse software patents is the duration of the patent. Twenty years is a hell of a long time in software. It practically invites patent trolling.
Besides, they're unfair. A typical software product might have perhaps 1% patented matter, and 99% copied from the "standard requirements" of the market segment it's in. The competitors spent the money developing the market to figure out that 99%, so if you use a quid pro quo measure then they have an automatic right to the 1% innovation the new player brings to the table.
Me neither, but that just means that patents, as they are now, don't serve their intended purpose. It doesn't mean that there's nothing that could be done to remedy that situation.
That they are somehow needed to encourage innovation is a myth.
Maybe it's more accurate to say that they (are intended to) prevent situation that seriously discourage innovation. If I come up with a really ingenious algorithm to do a hellishly complicated thing X, it would be nice to have the legal protection for a certain period while I struggle to get it to the point where it starts making me money. Protection from what? Protection from someone else stealing the algorithm and implementing it faster and beating me to the money making stage.
Besides, they're unfair. A typical software product might have perhaps 1% patented matter, and 99% copied from the "standard requirements" of the market segment it's in. The competitors spent the money developing the market to figure out that 99%, so if you use a quid pro quo measure then they have an automatic right to the 1% innovation the new player brings to the table.
First of all, the assumption that a "typical software product" should rely on a patent is not necessarily true. The company to which I was referring is in the business of developing software for semiconductor manufacturers. Their products are definitely not "typical software products". That specific market is pretty much cut-throat: there aren't many companies developing for it and, consequently, the customer always has you by short hairs. Patents are just another tool in their toolbox for dealing with the competition.
Second, I don't understand why you automatically assume that the patent holder isn't one of those players who "spent the money developing the market to figure out that 99%". I'm not defending patent trolls here. I'm defending the cases in which you want to protect that 1% that distinguishes you from the competition.
Third, even if the patent holder is a new player, how did you arrive at a conclusion that spending money on figuring out 99% of "standard requirements" somehow makes you have "an automatic right to the 1% innovation the new player brings to the table"? It sounds like a false sense of entitlement.
Combined with the fact that I am appalled by the idea of use of government force to block someone from using an invention - that they may have arrived at independently - just because someone else patented it first; and my belief that there are too many smart people in the world for any really useful idea to stay undiscovered long, I advocate for simply abolishing the entire patent system.
The abuse of the system for things that really don't require research and development is at issue here. I think proposals to abolish software patents entirely are probably wrong - but granting patents on XOR, or 1-click, or doing something obvious but on a computer system, are equally wrong.
Put it this way: if I have a problem to be solved by software that is really hard (such as your algorithm), then I'm going to research it before spending five man-years developing it, find you guys, and happily license your solution. No question. And if somebody reverse engineers your solution and sells it, then by God they should be penalized for violating your patent. This is why we have patents.
But if I have an idea like 1-click and pay an Indian developer $10 an hour for a week to develop it, this is simply not worthy of monopoly protection; your disclosing your solution isn't that valuable. If, seventeen years from now, after I've built an online shopping empire while you haven't, you sell your patent to Lodsys and they sue me for a billion dollars out of the blue, that is highway robbery, and it's not in any way helping society - and that is the situation we actually currently have.
There is no "effort" requirement for patents on physical inventions. There's also no "it was done by experts" requirement.
http://en.m.wikipedia.org/wiki/Person_having_ordinary_skill_...
A classic case of "see, this is why we can't have nice things".
In most regulatory organizations where a high amount of expertise is required (like economics) you see a lot of corruption where companies hire out of and into these organizations specifically for the benefits of having representation on the inside. I.e. Henry Paulson.
So unless you have a good way of preventing these employees from ever working for Microsoft / Facebook / Apple / Google etc. then it's really not going to work out as intended.
IMO, just get rid of software patents. Sure it'll suck for some, but overall it's probably healthier for the industry. Plus it's nice and simple and doesn't employ a whole mess of lawyers.
What I don't get though is why it seems to be such a challenge to prove the invalidity of these crap patents in court. The google loss to bedrock (the linux kernel troll) is a high profile example of this. Maybe the standards that need to be looked at are around litigation and if enough crap is thrown out, all the incentive is gone and all of the sudden the USPTO application volume goes way down.
Perfect software patent system > no software patent system > broke software patent system, but I believe the perfect system is impossible, so I'd rather see the software patent system dismantled completely than exist in a broken state.
1) if it is proprietary software, just add a clause which forbids reverse engineering. If it really is as complex as you describe however, I doubt reverse engineering it would be an option.
2) if it is open source software, I don't see the big deal. Even if they get the algorithm your software can still stay steps ahead of theirs.
So what advantage would a patent even give you in this case?
The problem is inherent in the fact that people®© are flawed. And by "flawed", I mean "cunts"®
Unless I'm wrong. In which case we can expect software patents to disappear next week.
Just a thought, not the answer. But the system is totally ridiculous as it stands.
Second, Lodsys didn't even "invent" the idea. They purchased the patent and are now using it like a cluster bomb on the entire mobile app developer community.
The fact that Lodsys bought the patent and didn't invent the idea themselves seems entirely irrelevant to this dilemma. Unless you also think that if you acquire someone else's software, you don't have the right to sell it.
Please correct me if I'm wrong, but is Lodsys not just a collector of intellectual property? There's something to say about the difference between a corporation buying intellectual property rights related to its business and a corporation seeking only to sponge off others labor, profits and wit, contributing neither economic activity nor social involvement.
Companies that create patents are more likely to invest their time, money and effort into actually making things that will eventually be sold (in whatever fashion). This activity adds value to the economy. While it is possible for such companies to aggressively pursue their patents in the way that Lodsys has, they don't need to do it to survive, and I hope that the people who work there would rather spend time on more productive things. That's not a guarantee, of course.
Companies that merely collect patents, and exist solely to collect and profit off of the patents themselves, do not add value to the economy. They are parasites. Because they have no other way of generating revenue, we can expect them to behave in the way that Lodsys has.
If it was possible to design the IP laws so that patent trolling was not profitable, then I think that would be a good thing. I'm not sure if it's possible - but I think it's worthwhile to recognize that there is a relevant difference.
Then again, they take way more value out of the market, so it ends up being a negative.
I'd like to introduce the concept of Movie Patents. I'd register a patent for the plot device of having the bad guy be the main character's best friend, with additional clauses for being his boss, advisor, or partner. I wouldn't ever make any movies. I'd just sit back and collect royalties from everybody who used my idea.
The reason behind this is that maybe then people who matter would actually notice how silly this concept is. It's so plainly obvious that it's a bad idea that regular people can finally understand what's going on. Eventually, people with the ability to make changes might actually find themselves forced to make changes.
Software, as big as it is, is just not that big. This issue can piss every single one of us off, and it won't make the NBC Nightly News. It can't piss off the people it needs to piss off in order to get it fixed, so chances are it will stay unfixed indefinitely.
People have disputed the originality of movie ideas including Matrix [0] and Harry Potter [1].
[0] http://blogcritics.org/video/article/author-sues-matrix-writ...
[1] http://www.cbsnews.com/stories/2010/02/18/entertainment/main...
mluiten might be referring to the fact that copyright only applies to "original works of authorship fixed in a tangible medium of expression." (See http://www.copyright.gov/help/faq/faq-general.html)
That is, copyrights don't cover ideas, but creative works in some fixed form (e.g., a painting or a piece of software).
Say you've got a popular photo, you can transfer the litigious rights of it to a copyright troll and that troll will then sue everyone using it.
Kind of like what RIAA is doing.
So to clarify: Saying two different movies both of which has the "friend turns out to be bad" are copies is wrong; that's just not enough of a similarity to base a copyright case on. However, if you happen to find a way to patent it (which you probably could if there hasn't been prior art), you would be able to sue for patent infringement.
Doubtful. But, given that if diversity in movie plots benefits mankind (!) then offering an incentive to develop a new plot could be worth it. If the plot is entirely disclosed so that it can be used for free by anyone in a few years then is this not a benefit?
Well, lawyers already went there: http://www.plotpatents.com/
"A Plot or Storyline Patent application seeks to patent the underlying novel and nonobvious storyline of a fictional story. Such protection is to be contrasted from the copyright protection of one of millions of possible expressions of an underlying storyline. The field of possible applications is broad, and may tentatively be split into an entertainment-advertisement dichotomy. The epitome of an entertainment application is an original, thought-provoking, often shockingly unique movie plot. Several potentially patentable features may have been found in the plots of, Memento, The Thirteenth Floor, Being John Malkovich, Butterfly Effect, The Game, Fight Club, The Matrix, Total Recall, The Truman Show, Minority Report, The Village, Groundhog Day, and Eternal Sunshine of the Spotless Mind, to name a few. The epitome of an advertisement application is one of the many thoughtfully hilarious Super Bowl commercials."
http://www.theregister.co.uk/2005/11/04/movie_plotline_paten... http://www.groklaw.net/articlebasic.php?story=20051103183218... (this article's link to the published application is no longer accurate)
the ... proponent's website has its own legal reasoning: http://www.plotpatents.com/about_us.htm
USPTO publication numbers for a few of their applications 20050272013 20050282140 20050255437 20050244804
You can find those on google's patent search or the USPTO's Public Pair service: http://portal.uspto.gov/external/portal/pair
And beyond just being... questionable as a type of invention, the applications seem eager to see just how broad such claims might be:
1. A process of relaying a story having a timeline and a unique plot involving characters, comprising: indicating that a first character experiences dj vu to mask an actual event.
The problem is that as soon as you put the word "software" in front of the word "patent" during a discussion you can actually see eyes glaze over and brains shut off in the person you are talking to.
It's just easier for representatives to ignore this. That or they see the issue as niche, and therefore don't pay attention.
Yes, the same ridiculous rules that apply to software MUST apply to something more mainstream so that it gets noticed.
The law includes an obviousness test for a reason. If Congress intended prior patent applications to be the sole test, they would have said so. The patent office is ignoring the law to the detriment of all of us.
If Lodsys is a patent troll, then Fred is an equity troll. When Lodsys purchased the patent, the inventor got PAID. When investors purchase stock in a company, the founders (and in the case of an IPO or acquisition, the VC's) get PAID.
This is virtually the same principle.
Besides, Lodsys "is seeking 0.575% of US revenue over for the period of the notice letter to the expiration of the patent, plus applicable past usage." That's hardly enough to kill innovation.
This is another instance where it would have been beneficial if all software professionals belonged to a Guild or union. If we were organized, at least there is some sliver of a chance that we'd be able to have an influence on the legislative process. If that fails, we would just not work to create software patents.
They also lobby for patent reform. They're exactly the credible group you're looking for, in my opinion. Here's part of their statement on the patent page:
While I tend to agree in general, the Lodsys situation is not a particularly good example in support of the position from an intellectual standpoint, though it may be good for rallying the troops. This is because Apple's actions in regard to in app purchases (IAP's) have been explicitly anti-innovation, i.e. Apple has required a specific monetizable IAP protocol in lieu of allowing developers to innovate (one does not need to even get into questions regarding the innovation raised by Apple's patent portfolio regarding UX elements). Let us remember that developers are only vulnerable because they are complying with a technical mandate of their agreement with Apple and that this mandate is solely intended to produce uniformity within the IOS ecosystem. Given Apple's patent portfolio, they may have far more to gain in terms of IP protection by upholding Lodsys's position than by fighting it.
Because software and technology are like magic to a large part of the population, including a large segment of those involved in government and the judiciary.
Patents are just another specialized form of legalese. It's obvious we need better ways of challenging patents and filtering them in the first place.
Lots of people speak about the "stupidity" of it all. I see no stupidity here. Just the normal, to-be-expected lean of a big government toward protecting the incumbents.
Also I think people should speak more often about drastically shortening copyright and patent terms. They are both very useful, even in controversial domains like software or biotech (patenting genes). The problem is that the situation is waay skewed one way. If you want to bring it closer to normal, start asking for 1 year patent terms and 3 year copyright.
In practice, however, this will simply force patent trolls to jump through a few more hoops and find the least expensive way to distribute the product in some form in order to defeat the intent of the law while following its letter.
Make software patents only holdable by a real person (i.e. not a corporation), and not transferable. Any money received from a patent infringement lawsuit would be paid to that named person.
That way, they can be used for their original purpose (to protect small inventors and allow them to build a larger business), but can't be collected by the trolls.
(It would also give companies an incentive to keep 'their' patent owners happy).
Just an idea... I'm sure there's a glaring hole in it somewhere.
http://www.insidefacebook.com/2011/05/17/facebook-patent-pho...
Now I'm in Europe where this don't apply, but we actually had plans making our platform available in U.S. later on with something that has to do with tagging images - which itself is hardly any innovation (?!!)!. I mean, c'mon. We will now probably avoid that and look east instead. I'm still fascinated that they managed to get thorugh with this, almost like the 1-click-purchase that Amazon trying to paten. It's almost like a fairy tale - with no happy ending.
That's the central travesty here. Possibly if you're a patent attorney, you really do think purchasing with one click is a detailed and arcane technology the development of which is expensive enough to require a 20-year monopoly, but all that tells me is that patent attorneys are somewhat dim people who wouldn't understand productive work if it bit them in the face.
Not that I have strong feelings or anything.
Whatever you do, don't count on Reddit and Hacker News to do it for you, that's just slacktivism.
I don't know that anyone really knows how or what to do here. How does a non-mainstream issue like this get into the public eye in such a way that anyone but our niche gives a crap?
Lastly, we have to ask why they REALLY exist. What is REALLY going on. Where is the money in all this, who's making the most?
If Big Software Corp A wants patents to stick around, and the legislator wants Big Software Corp A's money for the next election, do they have any interest in representing the people, or just the corporation?
In this situation, the number of PEOPLE who don't want these patents has to surpass the influence of the large corporations who do want software patents to stay as they are. I just don't see this happening.
I ask because I find a high correlation between this particular point of view : "entity 'x' whom is unassailable, is corrupting the politician I voted in to represent me." And people who have neither voted, nor talked with any representative who was either elected or was trying to be elected.
Here is my idea on 'what to do' here, let me know if it sounds reasonable or not.
My idea is that a group of technologists work with Congress and the Patent and Trademark office to take a look at the existing processes and goals and then put together a program for moving the existing patent law into something that makes sense and serves the needs of inventors without creating opportunities for commercial extortion.
Worth a shot?
I mentioned this before in a discussion about how we change government policy by building software. http://news.ycombinator.com/item?id=2479302
I have no idea what USV is up to today, but back when my company was in their portfolio, I got the impression that they were no strangers to lobbying.
Not too long ago, I attended a large meeting of software business people. They needed to find or write appropriate collaboration software for a particular aspect of their community, and the discussion had pretty much taken it as a given that if they ended up developing the software it would get released as OSS. At one point, someone in the room (who had previously introduced themselves as a business founder) said something to the effect of "We're all trying to build businesses on software, so isn't Open Source undermining everything we do here?", with some further comments about the incompatibility of OSS and business. They got a pile of shocked glares, with expressions that plainly said "where have you been for the last decade?", and someone quickly and kindly preempted the dozen responses they were about to get with a brief "no, suffice it to say there are a lot of people building successful businesses on Open Source, and further explanations should wait until after this meeting".
Never assume that everyone understands something just because everyone you know understands it, even if everyone you know understands it to the point of not even needing to hear about it anymore.
Unfortunately software patents are useless for this purpose: they don't fulfil the function of making ideas public. Who, in this day and age, refers to a patent for the details of an algorithm?
I would argue that open-source software, in many ways, succeeds where software patents fail.